20 December 1954
Supreme Court


Case number: Appeal (civil) 109 of 1952






DATE OF JUDGMENT: 20/12/1954


CITATION:  1955 AIR  228            1955 SCR  (1)1168

ACT: Lost Grant-Presumption of-When such presumption does or does not arise-Legality of lost grant of Niskar from Mohunt-Plead- ing and proof-Findings of fact.

HEADNOTE: A  presumption of a lost grant arises in favour of a  person who  does  not claim adversely to the owner but who  on  the other  hand  proves  ancient  and  continued  possession  in assertion  of  a title derived from the  owner  without  any challenge  and  such  possession  and  assertion  cannot  be accounted  for except by referring to a legal origin of  the grant claimed. But  the presumption of a lost grant is not an  irrebuttable presumption  of  law and the court cannot  presume  a  grant where  it is convinced of its non-existence by reason  of  a legal  impediment, as where the presumption of a lost  grant is  claimed by a fluctuating body of persons.   Similarly  a presumption  of a lost grant cannot arise when there  is  no person  capable  of  making such a grant  or  if  the  grant pleaded is illegal or beyond the powers of the grantor. A presumption of a lost grant by way of Niskar cannot be im- puted  to the Mohunt of an Asthal inasmuch as he is  legally incompetent to make any Niskar grant. When  a defendant who denies the title of the  plaintiff  in respect of any land, fails in that plea, he cannot fall back on  the  presumption of a lost grant from  the  very  person whose title he has denied. Findings of fact arrived at by courts should not be vague. Attorney-General  v.  Simpson ([1901] 2 Ch.  D.  671),  Raja Braja  Sunder Deb v. Moni Behara and others ( [1951]  S.C.R. 431), Barker v.     Richardson  ( [1821] 4 B. &  Ald.  579), The Rochdale Canal Com- 1169 pany  v.  Radcliffe  ([1852] IS Q.B.  287),  and  Palaniappa Chetty v. Sreenath Devasikamony ( [1917] L.R. 44 I.A.  147), referred to.



JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 109 to  115 of 1952. Appeals  from the Judgment and Decree dated the 9th  day  of March  1950 of the High Court of Judicature at  Calcutta  in Appeal from Appellate Decree Nos. 1841-1847 of 1945  arising out  of the Decrees dated the 16th day of September 1944  of Munsiff 3rd Court, Burdwan. P.   K. Chatterjee, for the appellant. S.   C.  Das  Gupta,  (Sukumar Ghose,  with  him),  for  the respondents  in  Civil Appeals Nos. 109 to 112 of  1952  and respondents 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. 1954.  December 20.  The Judgment of the Court was delivered by VENKATARAMA  AYYAR  J.-The  appellant is  the  Mahant  of  a religious  institution known as Rajgunj Asthal  in  Burdwan, and  the suits out of which the present appeals arise,  were instituted by him to recover possession of various plots  of land  in  the  occupation  of  the  defendants,  or  in  the alternative, for assessment of fair and equitable rent.   It was  alleged  in  the  plaints  that  the  suit  lands  were comprised  in  Mouza Nala forming part  of  the  permanently settled  estate of Burdwan, and were Mal lands  assessed  to revenue,  and that more than 200 years previously there  had been  a  permanent  Mokarrari grant of those  lands  by  the Maharaja  of  Burdwan  to the Rajgunj Asthal;  that  in  the record  of  rights published during the settlement  in  1931 they  were erroneously described as rent-free, and  that  on the  strength of that entry the defendants were refusing  to surrender possession of the lands to the plaintiff.  It  was accordingly prayed that a decree might be passed for  eject- ment   of  the  defendants,  or  in  the  alternative,   for assessment of a fair and equitable rent. 1170 The  defendants  contested the suits, and pleaded  that  the lands  were not Mal lands comprised within Mouza Nala,  that they  did not form part of the zamindari of Burdwan but  had been granted as Lakheraj to their predecessors-in-title long prior to the permanent settlement, that neither the Maharaja of  Burdwan  nor the plaintiff claiming under  him  had  any title to them, and that the entry in the record of rights in 1931 was correct.  The defendants also pleaded that as  they and  their predecessors had been in possession of the  lands for over 200 years under assertion of an adverse title,  the claim of the plaintiff was barred by limitation. The District Munsif of Burdwan who tried the suits held that the lands were included in Mouza Nala in Thouzi No. 1, which was comprised in the permanently settled estate of  Burdwan, that  their  income  was taken into account  in  fixing  the revenue payable by. the estate., that they had been  granted in  permanent Mokarrari by the then Maharaja of  Burdwan  to the Rajgunj Asthal, and that the plea of the defendants that they  held  them under a Lakheraj grant made  prior  to  the permanent  settlement was not true.  He also held  that  the documents on which the defendants claimed to have dealt with the properties as owners under assertion of an adverse title were  not  proved  to relate to the  suit  lands,  that  the relationship  subsisting  between  the parties  was  one  of landlord and tenant, that as there had been no determination of tenancy, no decree in ejectment could be passed but, that the plaintiff was entitled to fair rent, and that the  claim was  not barred by reason of article 131 of  the  Limitation



Act.  In the result, he granted decrees for rent. The  defendants appealed against this decision to the  Court of  the  District  Judge of Burdwan,  who  agreed  with  the District  Munsif that the suit lands were Mal  lands  within the zamindari of Burdwan, and that they had been settled  on the plaintiff by the Maharaja of Burdwan.  But he held  that as the defendants and their predecessors had been in posses- sion of the lands for a very long time without 1171 payment of rent, a presumption of a lost grant could be made in  their  favour.   He  accordingly  dismissed  the  suits. Against  this decision, the plaintiff appealed to  the  High Court,  which agreeing with the District Judge on  both  the points  dismissed  the appeals, but  granted  a  certificate under article 133(1) (c), as it was of the opinion that  the question of lost grant raised an issue of great importance. The  substantial  question that arises for our  decision  is whether  on  the materials on record the Courts  below  were right in presuming a lost grant in favour of the defendants. The   grounds  on  which  the  District  Judge   made   that presumption are that the defendants, and their  predecessors had been in possession of the lands for a long time  without payment  of rent, that they had been asserting  continuously that they were holding under a Lakheraj grant, and that they did  so  to  the knowledge of the  plaintiff.   It  must  be mentioned  that in dealing with this question  the  District Munsif held that the documents put forward by the defendants as  containing  assertions by them that they  held  under  a Lakheraj  grant were not shown to relate to the suit  lands. The District Judge differed from this finding, and observed: ".............. 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". These observations are vague, and do not lead anywhere,  and cannot  be taken as a finding on the question.   No  attempt was  made before us on behalf of the respondents to  connect any  of the documents with the lands held by them.   In  the circumstances,  the  finding of the District Munsif  on  the point must be accepted. On the further question whether the plaintiff had  knowledge of the assertion of any hostile title by the defendants, the learned  District  Judge  answered  it  in  the  affirmative relying on Exhibits A to A-24, 150 1172 which  are  receipts  for realisations of  cesses  from  the defendants.  But the High Court held-and its finding has not been  attacked  before  us-that there was no  proof  of  the contents of these documents, and that they must therefore be excluded.  The position thus is that there is no proof  that the respondents set up any adverse title prior to 1931, much less  that the plaintiff bad knowledge of the same.  We  are therefore  left with a bare finding that the defendants  and their  predecessors  in title had been in possession  for  a long  period without payment of rent; but here again,  there is no finding as to the precise length of time during  which they  held  possession.   The question is  whether  in  this situation a presumption of lost grant could be made. The  circumstances and conditions under which a  presumption of lost grant could be made are well settled.  When a person was  found  in  possession  and  enjoyment  of  land  for  a considerable  period  of time under an  assertion  of  title without  challenge,  Courts  in  England  were  inclined  to ascribe  a legal origin to such possession, and when on  the



facts a title by prescription could not be sustained, it was held  that a presumption could be made that  the  possession was referable to a grant by the owner entitled to the  land, but  that  such grant had been lost.  It was  a  presumption made  for securing ancient and continued  possession,  which could not otherwise be reasonably accounted for.  But it was not a presumption juris et de jure, and the Courts were  not bound to raise it, if the facts in evidence went against it. "It cannot be the duty of a Judge to presume a grant of  the non-existence of which he is convinced" observed Farwell, J. in Attorney-General v. Simpson(1).  So also the  presumption was not made if there was any legal impediment to the making of it.  Thus, it has been held that it could not be made, if there was no person competent to be the recipient of such  a grant,  as where the right is claimed by a fluctuating  body of persons.  That was held in Raja Braja Sundar Deb v.  Moni Behara  and others(1).  There will likewise be no scope  for this (1) [1901] 2 Ch.  D. 671, 698. (2) [1951] S.C R. 431, 416. 1173 presumption,  if  there  is no person capable  of  making  a grant: (Vide Halsbury’s Laws of England, Vol.  IV, page 574, para  1074);  or if the grant would have  been  illegal  and beyond   the  powers  of  the  grantor.  [Vide   Barker   v. Richardson(1)   and   The   Rochdale   Canal   Company    v. Radcliffe(1)]. In  the  light of these principles, it has now  to  be  seen whether on the facts found a lost grant could be presumed in favour  of  the  defendants.  The  finding  is,  as  already stated, that they were in possession without payment of rent for  a  considerable  length of time, but it  has  not  been established  precisely  for  how  long.   In  their  written statements  they pleaded that they bad been holding under  a Lakheraj  grant made prior to the permanent settlement,  and had been in possession by virtue of that title for over  200 years.   On this plea, the grant to be presumed should  have been made 200 years prior to the suit.  There is an  obvious difficulty in the way of presuming such a grant on the facts of  this  case.   There was a permanent  settlement  of  the zamindari  of Burdwan in 1793, and it has been found by  all the  Courts  that  in that settlement the  suit  lands  were included as part of the Mal or assessed lands of the estate. Now, the scheme of the settlement of the estates was to  fix the revenue payable thereon on the basis of the income which the properties were estimated to yield, and Regulation No. 8 of 1793 contains elaborate provisions as to how the  several kinds  of property are to be dealt with.  Section 36 of  the Regulation provides 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".  Therefore, when it is shown that lands  in an estate are assessed, it must follow  that  they could  not  have  been held on the  date  of  the  permanent settlement  as Lakberaj.  It would be inconsistent with  the scheme of the settlement and section 36 of Regulation No.  8 of 1793 to hold that the assessed or Mal lands in an  estate could have been held on an anterior Lakheraj grant.  It  was for this (1) [1821] 4 B. & Ald. 579. (2) [18521 18 Q. B. 287. 1174 reason that the defendants pleaded that the suit lands  were not comprised in the Mal lands of the zamindari of  Burdwan. But that plea has been negatived, and it has been found that



they are part of the Mal lands within the zamindari assessed to  revenue, and in view of that finding there is  no  scope for the presumption of a lost grant. Learned  counsel for the respondents relied strongly on  the record  of  rights made in 1931 with reference to  the  suit lands  as supporting his contention.  The entry in  question describes  the lands as "Bhog Dakhal Sutre Niskar", and  has been translated as "without rent by virtue of possession and enjoyment".   The plaintiff attacked this entry as  made  at the instance of the defendants acting in collusion with  one of  his agents.  The Courts below, however, have  held  that had  not been established, and therefore the entry  must  be taken  as properly made.  The respondents contended  that  a strong   presumption  should  be  made  in  favour  of   the correctness  of  the  entry,  because it  was  made  in  the ordinary  course of business, and that it was sufficient  to sustain  a presumption of lost grant.  Giving the entry  its full value, does the word "Niskar" import a rent-free grant? Rule  37 of the Technical Rules and Instructions  issued  by the  Settlement Department for observance by the  settlement authorities  provides  that  if property  is  found  in  the possession  of a person who is not actually paying rent  for it should be described as "Niskar", and if no sanad or title deed is produced by the occupant showing a rent-free  title, the  words "Bhog Dakhal Sutre" (by virtue of  enjoyment  and possession)  should be added.  In the written  statement  it was  stated  that (as the defendants could not  produce  any ’revenuefree  grant’  they  (Settlement  Officers)  recorded Niskar  Raiyati  right in a general way".  Reading  Rule  37 along with the written statement it is clear that the  entry in the record of rights in 1931 was made in compliance  with that Rule, and that what it imports is not that there was  a rent-free  grant, but that the person in possession was  not actually  paying rent.  Whatever weight might attach to  the word "Niskar" in a                             1175 record  of  rights in other context, where the  question  is whether  a  presumption of a  lost  pre-settlement  Lakheraj grant  could  be made, the inference to be drawn  from  that word cannot outweigh the effect of the non-exclusion of  the lands from the Mal or the regularly assessed estate.  We are therefore of opinion that a presumption of lost grant cannot be founded on the entry in the record of rights. There are also other difficulties in the way of presuming  a lost grant in favour of the predecessors of the  defendants. The  suit  properties formed part of Mauza Nala  within  the zamindari of Burdwan, and if a grant had been made in favour of  the  predecessors of the defendants, it must  have  been made  by the Maharaja of Burdwan or by the  Rajgunj  Asthal. But  the defendants have in their written statements  denied the  title of both the Maharaja and the Asthal,  and  having failed  in that plea, cannot fall back on a  presumption  of lost  grant  by  the very persons,  whose  title  they  have repudiated. This   does  not  exhaust  all  the  difficulties   of   the defendants.   According  to  the District  Judge,  the  suit properties had been settled on the Rajgunj Asthal more  than 200  years  ago.  Therefore, the grant to be  presumed  must have  been  made by the Mahant of Asthal in  favour  of  the predecessors  of the defendants.  But before raising such  a presumption,  it must be established that the grant was  one which  could  have  legally been made by him.   It  is  well settled  that  it  is beyond the powers of a  manager  of  a religious  institution to grant perpetual lease binding  the institution for all times to a fixed rent, unless there is a



compelling  necessity or benefit therefor.  Vide  Palaniappa Chetty v. Sreenath Devasikamony(1).  And what is pleaded  in the  present case is not even so much as a permanent  lease, because there is neither premium paid nor rent reserved  but a  Lakheraj  grant unsupported by any  consideration.   That would  clearly  be  beyond the powers of a  Mahant,  and  no presumption  of  a  lost  grant could  be  made  in  respect thereto.   In  Barker  v. Richardson(2) ,  an  easement  was claimed (1) [1917] L.R. 44 I.A. 147.  (2) [1821] 4 B. & Ald. 579, 1176 both on the ground of prescription and presumption of a lost grant  by a rector.  In negativing this claim, Abbot, C.  J. observed  that  a grant could not be presumed,  because  the rector  had  no right to bind his successor by  it,  and  it would  therefore be invalid.  In The Rochdale Canal  Company v. Radcliffe(1) where the Court was asked to presume that  a company  had made a grant of its surplus waters for  use  by the Duke of Bridgewater, Lord Campbell, C. J. observed  that "if they had made a grant of the water in the terms of  this plea, such a grant would have been ultra vires and bad", and on that ground, he refused to raise the presumption. We  are accordingly of opinion that on the facts  found,  no presumption  of a lost grant could be made in favour of  the defendants,   and  that  the  plaintiff  was   entitled   to assessment  of  fair and equitable rent on the  holdings  in their possession. Learned counsel for the respondents also raised the plea  of limitation.  The Courts below have held that the suits  were within time under article 131 of the Limitation Act, as  the final settlement of records was published on 16-6-1931,  and the  present  suits were filed within 12 years  thereof  for establishing  the right of the institution to assessment  of rent.   It  was observed by the learned Judges of  the  High Court who heard the application for leave to appeal to  this Court  that  it  was  not suggested  before  them  that  the decision  on the question of limitation was erroneous.   The contention that is now pressed before us is that in the view that  there  was  no  rent-free  grant  in  favour  of   the predecessors  of the defendants they were  all  trespassers, and that the title of the Asthal had become extinguished  by adverse possession for long over the statutory period.   But the question of adverse possession was not made the  subject of  an  issue,  and  there is no discussion  of  it  in  the judgments  of the Courts below.  We have already  held  that the  documents  relied on by the  defendants  as  containing assertions  that  they held under a Lakheraj grant  are  not shown to relate to the suit lands.  We (1)  [1852] 18 Q.B. 287,                             1177 have  also held that there is no proof that  the  defendants claimed to hold under a rent-free grant to the knowledge  of the  plaintiff  prior to 1931, and that what  all  has  been established   by   them  is  non-payment  of  rent   for   a considerable  but  unascertained period of time.   That,  in itself, is not sufficient to make their possession  adverse. It  was  only  in 1931 that the  defendants  could  be  said clearly to have asserted a hostile title, and the suits  are within  time from that date.  There is no substance in  this plea, which is accordingly rejected. In the result, the appeals are allowed, the decrees ,of  the District  Court  and of the High Court are  set  aside,  and those  of  the District Munsif restored with costs  in  this Court  and  in  the two Courts below.  The  decrees  of  the District Munsif will stand as regards costs in that Court.



Appeals allowed.