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1906 DIGILAW 9 (CAL)

Nagendra Lal Chowdhury v. Nazir Ali

1906-01-24

body1906
JUDGMENT Mitra J. 1. Mehal Chillania was permanently settled in or about the year 1793 and it is situated in the permanently settled district of Chittagong. In the middle of the last century it was sold for arrears of land-revenue under Act I of 1845 and was purchased by the Government. The Government was in possession of the mehal for some years as a proprietor, and in 1864 it was again permanently settled. It was again sold for arrears of land revenue under Act XI of 1859 and the Plaintiff purchased it on the 28th November 1898. On the 2nd May 1901 the Plaintiff instituted the suit under appeal for the recovery of possession of a large number of plots of land on the allegation that the Defendants were holding them under leases which under sec. 37 of Act XI of 1859 had become void and inoperative as against the Plaintiff, a purchaser of an entire estate free of all encumbrances created since the settlement. The Defendants denied the Plaintiff's allegation of the creation of their tenures subsequent to the Permanent Settlement, asserted their existence and uniform payment of rent from the Permanent Settlement and claimed protection under the exception to sec. 37 of Act XI of 1859. 2. The lower Appellate Court has given the Plaintiff a decree for some of the plots but it has dismissed the suit as regards the others being of opinion that the tenures creating the latter are protected. 3. The facts found in respect of the latter plots are these. Some of these plots are covered by tenures which are mentioned in the Survey Chitta of 1839 and rents of these tenures have been paid at uniform rates until the sale of 1898. Some of the other plots are covered by confirmatory leases of tenures which are mentioned in the Survey Chitta of 1839 and there was no variation of their rents, and on two of the plots there is a tank. There is no direct evidence to show that the tenures have existed from the Permanent Settlement of 1793. 4. The argument mainly relied on by the learned Counsel for the Plaintiff-Appellant is that it was necessary for the Defendants to prove by positive evidence the existence of their tenures from the Permanent Settlement of 1793, and not merely the Permanent Settlement of 1864 and that, sec. 31 of Act. 4. The argument mainly relied on by the learned Counsel for the Plaintiff-Appellant is that it was necessary for the Defendants to prove by positive evidence the existence of their tenures from the Permanent Settlement of 1793, and not merely the Permanent Settlement of 1864 and that, sec. 31 of Act. XI of 1859 contemplates only the Settlement of 1793 and not any subsequent settlement such as the one that took place in 1864. Reliance has been placed on Koowar Singh v. Gour Sundar Persad Singh ILR 24 Cal. 887 (1897). but as observed by the learned Munsif, that case does not touch the question raised before us. On the other hand our attention has been drawn to Raj Chunder Chowdhry v. Sheikh Bashir Mahomed 24 W.R. 476 (1875)., which is a direct authority to show that the settlement contemplated by sec. 37 of Act XI of 1859 is the last permanent settlement creating the estate and not the settlement of 1793 when the estate itself is a creation of a later date. The question raised is one of some difficulty, especially in the present case, as estate Chillania was twice permanently settled. The latter fact distinguishes the present case from Raj Chunder v. Sheikh Bashir 24 W.R. 476 (1875). 5. It seems to us from the collocation of the expressions "permanently settled" and "Permanent Settlement" in sec. 37 and the meaning attached to the expression in the Bengal Tenancy Act and similar enactments that the framers of the Re- venue Sale Laws including the law of 1859 contemplated the Permanent Settlement of 1793. The obvious intention was to give fixity to tenures of long existence, the Permanent Settlement of 1793 being taken to be a date of the same nature as the reign of Richard II in England. 6. It is not however necessary for us to discuss the question at length and to express a decided opinion on it, as we are of opinion that the facts found are sufficient to raise a presumption of the existence of the tenures from 1793. They were recognised as existing tenures in 1839, they were not avoided on the purchase by the Government and were recognised again in 1864 by the Government. They were recognised as existing tenures in 1839, they were not avoided on the purchase by the Government and were recognised again in 1864 by the Government. There is clear proof of uniformity of rents for at least sixty years and of sales of the tenures and in the absence of evidence as to the origin of the tenures and variation of rents at any previous period we may and ought to presume backwards and hold that the Defendants have succeeded in discharging the burden of proof which, in our opinion, sec. 37 of Act XI of 1859 throws on them. The case comes within the principle optimus interpres rerum usus which has been recently adopted by the Judicial Committee in Upendra Krishna v. Ismail Khan L.R. 31 IndAp 144 : s.c. 8 C.W.N. 880 (1904). We, therefore, agree with the lower Appellate Court as to the decree passed by it and we dismiss this appeal with costs.