Sri Monohar Das Mohanta vs Charu Chandra Pal And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 109 to 115 of 1952

Decision Date: 20 December 1954

Coram: Mehar Chand Mahajan, Natwarlal H. Bhagwati, B. Jagannadhadas, Bhuvneshwar P. Sinha, Venkatramā Ayyar

In this matter, the Supreme Court of India delivered its judgment on 20 December 1954. The parties were identified as Sri Monohar Das Mohanta, who appeared as the petitioner, and Charu Chandra Pal together with several other respondents. The bench that heard the case was composed of Justice Mehar Chand Mahajan, who acted as Chief Justice, along with Justices Natwarlal H. Bhagwati, B. Jagannadhadas, and Bhuvneshwar P. Sinha. The case is reported in the 1955 volume of the All India Reporter at page 228 and also appears in the 1955 Supreme Court Reports (1) at page 1168. The principal legal issue addressed concerned the presumption of a lost grant, the circumstances in which such a presumption may arise, and the legality of a lost grant of Niskar asserted by a Mohunt. The headnote of the judgment explained that a presumption of a lost grant may arise in favour of a person who does not claim an adverse title against the owner but who can demonstrate an ancient and continuous possession based on a title derived from the owner without any challenge, and where that possession can be explained only by reference to a legal origin of the claimed grant. However, the court emphasized that this presumption is not irrevocable; it cannot be applied where the court is convinced, for legal reasons, that the grant does not exist, such as when the presumption is asserted by a fluctuating group of persons, when there is no competent grantor, or when the asserted grant is illegal or beyond the grantor’s authority. Specifically, a presumption of a lost grant by way of Niskar cannot be imposed upon a Mohunt of an Asthal because the Mohunt lacks legal competence to make any Niskar grant. Moreover, a defendant who denies the plaintiff’s title to any land and fails in that denial cannot subsequently invoke the presumption of a lost grant from the very person whose title he has contested. The judgment also noted that factual findings by courts should be clear and not vague, and it referred to several authorities, including Attorney‑General v. Simpson ([1901] 2 Ch. D. 671), Raja Braja Sunder Deb v. Moni Behara ( [1951] S.C.R. 431), Barker v. Richardson ( [1821] 4 B. & Ald. 579), The Rochdale Canal Company v. Radcliffe ( [1852] I.S. Q.B. 287), and Palaniappa Chetty v. Sreenath Devasikamony ( [1917] L.R. 44 I.A. 147).

The case originated as a civil appeal under the appellate jurisdiction of the Supreme Court, encompassing Civil Appeals Nos. 109 to 115 of 1952. These appeals were filed against the judgment and decree dated 9 March 1950 delivered by the High Court of Judicature at Calcutta, which itself was an appeal from Appellate Decree Nos. 1841‑1847 of 1945. The original decrees dated 16 September 1944 had been issued by the Munsiff 3rd Court at Burdwan. Counsel for the appellant was identified as P. K. Chatterjee, while counsel for the respondents included S. C. Das Gupta, assisted by Sukumar Ghose. These counsels represented the respondents in Civil Appeals Nos. 109 to 112 of 1952, as well as respondents numbered 1, 2(a), 3, and 4 in Civil Appeal No. 113 of 1952, and respondents 1 and 3 in Civil Appeals Nos. 114 and 115 of 1952.

On 20 December 1954, the Court delivered its judgment, presided over by Justice Venkatārama Ayyar. The appellant, who held the office of Mahant of the Rajgunj Asthal religious institution located in Burdwan, had instituted several suits seeking either the recovery of possession of various plots of land occupied by the defendants or, alternatively, the assessment of a fair and equitable rent for those lands. In the plaints, the appellant asserted that the disputed lands lay within Mouza Nala, formed part of the permanently settled estate of Burdwan, and were classified as Mal lands that were subject to revenue assessment. He further contended that, more than two centuries earlier, the then Maharaja of Burdwan had granted a permanent Mokarrari deed conveying the lands to the Rajgunj Asthal. According to the appellant, the 1931 settlement record of rights mistakenly listed the lands as rent‑free, and on that basis the defendants were refusing to surrender possession. Consequently, the appellant prayed for a decree ordering the defendants’ ejectment, or, in the alternative, a decree fixing a fair rent. The defendants, who were also identified as respondents 1 and 3 in Civil Appeals Nos. 114 and 115 of 1952, denied the plaintiff’s claims. They pleaded that the lands were not Mal lands within Mouza Nala, that they did not belong to the Burdwan zamindari, and that they had been granted as Lakheraj to their predecessors‑in‑title long before the permanent settlement. They asserted that neither the Maharaja of Burdwan nor the plaintiff, claiming under the Maharaja, possessed any title to the lands, and that the 1931 entry in the record of rights was correct. Additionally, the defendants argued that their ancestors had possessed the lands for over two hundred years under an adverse claim, thereby barring the plaintiff’s suit by reason of the limitation period.

The District Munsif of Burdwan, who tried the suits, held that the lands indeed formed part of Mouza Nala in Thouzi No. 1 and were included in the permanently settled estate of Burdwan, with their income taken into account in fixing the estate’s revenue. He found that the lands had been granted in permanent Mokarrari by the then Maharaja of Burdwan to the Rajgunj Asthal, and rejected the defendants’ contention that they were held under a prior Lakheraj grant. The Munsif further determined that the documents the defendants relied upon to claim ownership as adverse title did not pertain to the suit lands. He characterized the relationship between the parties as that of landlord and tenant, and observed that, because there had been no determination of tenancy, an ejectment decree could not be granted. Nonetheless, he concluded that the plaintiff was entitled to a fair rent and that the suit was not barred by Article 131 of the Limitation Act. Accordingly, the Munsif granted decrees directing the payment of rent by the defendants.

The defendants challenged the earlier decree by filing an appeal before the Court of the District Judge of Burdwan. That court concurred with the findings of the District Munsif that the lands involved in the suit were classified as Mal lands within the zamindari of Burdwan and that those lands had been settled upon the plaintiff by the Maharaja of Burdwan. Nevertheless, the District Judge concluded that, because the defendants and their predecessors had remained in possession of the lands for a very long period without paying rent, a presumption of a lost grant could be drawn in their favour. Relying on that presumption, the District Judge dismissed the suits. The plaintiff subsequently appealed this dismissal to the High Court. The High Court affirmed the District Judge’s conclusions on both the characterization of the lands and the presumption of a lost grant, and consequently dismissed the plaintiff’s appeals. However, the High Court also issued a certificate under article 133(1)(c), indicating that it regarded the question of a lost grant as an issue of great importance for determination by this Court. The principal issue now before this Court is whether, on the basis of the material placed before the lower courts, the presumption of a lost grant in favour of the defendants was correctly drawn.

The District Judge’s presumption was premised on three assertions: first, that the defendants and their predecessors had occupied the lands for an extended period without paying rent; second, that they had continuously claimed that their possession was under a Lakheraj grant; and third, that the plaintiff was aware of those claims. It is necessary to note that, when this question was examined by the District Munsif, he held that the documents produced by the defendants, which purported to show their claim of holding the land under a Lakheraj grant, did not appear to relate to the suit lands. The District Judge departed from that conclusion and offered the following observation: “…there are some unmistakable names of tanks, etc., by which some of the lands of these documents at least can be connected with the suit lands…These documents relating to these holdings cannot, therefore, be discarded as unconnected with the suit lands.” Those comments are vague, do not lead to a definitive finding, and cannot be treated as a substantive determination on the issue. Moreover, the respondents made no attempt before this Court to link any of the documents to the lands they occupied. Accordingly, the finding of the District Munsif on this point must be upheld. Regarding the further issue of whether the plaintiff had knowledge of any hostile title asserted by the defendants, the District Judge answered affirmatively, relying on Exhibits A to A‑24, 150, which are receipts for the realisation of cesses from the defendants. The High Court, however, held – a finding that has not been contested before this Court – that the contents of those receipts were not proved and therefore the documents must be excluded. Consequently, there is no evidence that the respondents asserted any adverse title before 1931, nor is there proof that the plaintiff possessed knowledge of such a claim. The record therefore contains only the bare finding that the defendants and their predecessors had been in possession of the lands for a long period without paying rent, without any further determination on the presumption of a lost grant.

In the case before the Court, the record showed that the defendants and their predecessors had occupied the suit lands for an extended period without paying rent, yet the evidence did not specify the exact duration of that possession. The Court therefore had to consider whether, on the basis of those facts, a legal presumption of a lost grant could be applied. The conditions under which such a presumption may arise are well established. Historically, English courts, when they discovered that a person had been in peaceful possession and enjoyment of land for a considerable length of time under an asserted title that had never been contested, tended to infer that the possession derived from an original legal grant. If, on the facts, a claim of title by prescription could not be sustained, the courts were prepared to presume that the possession stemmed from a grant by the true owner that had subsequently been lost. This presumption served to protect ancient and continuous possession that could not otherwise be explained. However, the presumption was not automatic or mandatory; it was not a matter of law de jure, and the Court was not obligated to invoke it when the factual record opposed such an inference. As observed by Justice Farwell in Attorney‑General v. Simpson, “It cannot be the duty of a Judge to presume a grant of the non‑existence of which he is convinced.” Moreover, the presumption could not be entertained if any legal impediment existed. For example, the presumption fails where there is no competent person who could have made the grant, such as when the right is claimed by a fluctuating collective of persons, a principle affirmed in Raja Braja Sundar Deb v. Moni Behara and others. Similarly, the presumption is unavailable if there is no identifiable recipient capable of receiving the grant, as noted in Halsbury’s Laws of England, Vol. IV, paragraph 1074, or if the hypothesised grant would have been illegal or beyond the grantor’s authority, a view supported by decisions such as Barker v. Richardson and The Rochdale Canal Company v. Radcliffe. Applying these principles to the present facts, the Court noted that while the defendants admitted to holding the land without rent for a “considerable length of time,” they had not established the precise period. In their written statements, the defendants claimed that they possessed the land under a Lakheraj grant issued before the permanent settlement and that they had exercised that title for over two hundred years. If that claim were accepted, the presumed grant would date back two hundred years prior to the suit. Yet a significant obstacle arose because the zamindari of Burdwan had undergone a permanent settlement in 1793, which, as all courts have held, incorporated the suit lands into the assessed (Mal) lands of the estate. The settlement’s scheme fixed revenue based on the estimated income of the properties, and Regulation No 8 of 1793, particularly Section 36, expressly stated that the assessment was to be fixed exclusive of any existing Lakheraj lands, whether exempted from public revenue or not. Consequently, once lands were shown to be assessed under the settlement, they could not have been held as Lakheraj lands on the date of settlement. This inconsistency presented a clear difficulty for the Court in presuming a lost grant in favor of the defendants based on the facts of this case.

The Court noted that every Court had held that, under the permanent settlement, the lands that formed the subject of the suit were incorporated within the Mal or assessed lands of the Burdwan estate. The settlement scheme was designed to determine the revenue payable on each estate by estimating the income that the properties could generate, and Regulation No. 8 of 1793 set out detailed rules for classifying the various types of property. Section 36 of that Regulation states that “the assessment is also to be fixed exclusive and independent of all existing lakheraje lands, whether exempted from the kheraje (or public revenue) with or without due authority.” Consequently, once it is shown that lands in an estate have been assessed, it follows that those lands could not, at the time of the permanent settlement, have been held as Lakheraj. To hold otherwise would conflict with both the overall scheme of the settlement and the specific provision of Section 36 of Regulation No. 8 of 1793, which precludes the possibility that assessed or Mal lands were subject to an earlier Lakheraj grant. The defendants had therefore argued, relying on citations (1) [1821] 4 B. & Ald. 579 and (2) [1852] 1 8 Q. B. 287, that the suit lands were not part of the Mal lands of the Burdwan zamindari. That argument was rejected because it was established that the lands indeed formed part of the Mal lands assessed for revenue, and on that basis the Court found no room for a presumption of a lost grant. Counsel for the respondents heavily relied on a 1931 entry in the record of rights concerning the suit lands. That entry described the lands as “Bhog Dakhal Sutre Niskar,” which was translated as “without rent by virtue of possession and enjoyment.” The plaintiff challenged the entry, alleging that it had been made at the behest of the defendants in collusion with one of his agents. However, the lower Courts held that the plaintiff had not proved this allegation, and therefore the entry was to be taken as properly made. The respondents argued that a strong presumption should be placed in favor of the entry’s correctness because it was entered in the ordinary course of business, and that the entry was sufficient to sustain a presumption of a lost grant. The Court examined whether the word “Niskar” in the entry necessarily implied a rent‑free grant. Rule 37 of the Technical Rules and Instructions issued by the Settlement Department, which settlement authorities must observe, provides that when a property is possessed by a person who is not actually paying rent, it should be described as “Niskar.” If the occupant cannot produce a sanad or title deed showing a rent‑free title, the words “Bhog Dakhal Sutre” (by virtue of enjoyment and possession) must be added. The written statement indicated that the defendants were unable to produce any such title.

In this case the Settlement Officers entered a note that the land was a “revenue‑free grant” and recorded a Niskar Raiyati right in a general manner. When Rule 37 is read together with the written statement, it becomes clear that the entry made in the 1931 record of rights complied with that rule and that the entry signified only that the occupant was not paying rent, not that a rent‑free grant existed. Even if the term “Niskar” might carry some significance in other records of rights, the inference that it creates a presumption of a lost pre‑settlement Lakheraj grant cannot override the fact that the lands were not excluded from the Mal or from the regularly assessed estate. Consequently the Court was of the opinion that the entry in the record of rights could not support a presumption of a lost grant. Further difficulties arise in attempting to presume a lost grant for the defendants’ predecessors. The property in dispute lay in Mauza Nala, which formed part of the Burdwan zamindari; any grant to the predecessors would necessarily have been made by the Maharaja of Burdwan or by the Rajgunj Asthal. Yet the defendants, in their written statements, denied the title of both the Maharaja and the Asthal, and having been unable to establish those titles they cannot later rely on a presumption of a lost grant from the very parties whose authority they repudiated. Counsel for the respondents also urged a limitation defence. The lower courts held that the suits were timely under Article 131 of the Limitation Act because the final settlement of records was published on 16‑June‑1931 and the present suits were filed within twelve years thereafter to establish the institution’s right to rent assessment. The High Court judges hearing the application for leave to appeal observed that no argument had been raised before them indicating any error in that limitation finding. The present contention before this Court is that, since no rent‑free grant existed for the defendants’ predecessors, they were trespassers and that the Asthal’s title had been extinguished by long‑standing adverse possession beyond the statutory period. However, the issue of adverse possession was never framed for determination and the lower‑court judgments contain no discussion of it. The Court has already concluded that the documents relied upon by the defendants, which purported to show a Lakheraj grant, do not relate to the lands in suit. Moreover, the Court has held that there is no evidence that the defendants claimed possession under a rent‑free grant was known to the plaintiff before 1931, and that the only fact established is the non‑payment of rent for an indeterminate period.

In this matter, the Court noted that the only factual assertion concerning the defendants’ conduct was that they had failed to pay rent for a long period, although the exact duration of that period could not be established. The Court held that such a failure to pay rent, by itself, does not convert the defendants’ possession into possession that is adverse to the plaintiff’s title. The Court further explained that the defendants did not clearly articulate a hostile claim to the land until the year 1931, and therefore the suit filed by the plaintiff was timely as of that date. Because the plaintiff’s claim was within the limitation period starting from 1931, the Court concluded that the defence based on the alleged earlier non‑payment of rent was without merit. Consequently, the Court found that the plea advanced by the defendants lacked any substantive foundation and was rejected. As a result, the Court allowed the appeals, set aside the judgments previously rendered by the District Court and the High Court, and restored the decree originally issued by the District Munsif. The Court also ordered that the costs be awarded both in this Court and in the two subordinate courts, and it directed that the decree of the District Munsif continue to operate with respect to costs in that Court. In sum, the appeals were allowed and the prior decrees were overturned in favour of the plaintiff.