Keshwar Bhagat Vs Sheo Prosad Lal and others

Jenkins, C.J.@mdashThis is an appeal from a judgment of Mr. Justice Caspersz, and it raises the question whether the Defendant''s holding is liable to assessment for rent. The Plaintiff is the zemindar, and in the record-of-rights there is an entry of this particular holding in the name of the 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 any thing as to liability to pay rent. This is in contrast with the expression "kabillagan" 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 Defendant 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 subjected to rent ; and the learned Judge consequently allowed the appeal and set aside the decree of the lower Court. Mr. Justice Caspersz on appeal has reversed that decree and sent back the case to the lower Appellate Court for a determination of the fair rental to be imposed on the land in suit. It is from this determination that the present appeal has been preferred. 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 I 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 Mohamed Akil v. Asadunnissa Bibi 9 W. R. 1 (1867), 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 through 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 Mr. Justice Caspersz and restore the decree of the District Judge with costs of this hearing and of the hearing before Mr. Justice Caspersz.