S.R. Das Gupta, J. - (1.) The suit, out of which this appeal arises, was for a declaration of title and recovery of khas possession of 143 acres of land in mouza Ghola, appertaining to touzi No. 6, alternatively, for assessment of rent. The plaintiff was the purchaser in revenue sale of touzi No. 6 and after such purchase he brought this suit on the allegations that the lands in question formed part of the mal assets of the said touzi No. 6 and the interest of the defendants was terminated by service of a notice under section 37 of the Bengal Land Revenue Sales Act, The defence was that the said lands were not part of the mal asests of touzi No. 6 and cannot be annulled. There was a further defence namely that there are permanent tanks and buildings on the said lands and therefore the tenancy of the defendants cannot also be annulled under section 37 of the said Act. The learned Munsif dismissed the suit. Against the said order of dismissal there was an appeal and the lower Appellate Court decreed the suit in part. The lower Appellate Court held that the tenancy was not annullable, but the land was liable to be assessed for rent. The lower appellate Court by its order remanded the case to the trial Court for assessment of fair and equitable rent payable for the land of the tenure in question. It is against that order that the present appeal has been filed to this Court.
(2.) The principal point agitated before us in this appeal by the appellant was that the said land did not form part of the mal assets of touzi No. 6. Before I deal with the point urged on behalf of the appellant it would be necessary to state certain facts. The land in question had been surveyed and in the settlement record the same has been described as forming part of touzi No. 6. The superior title is stated to be in one Akshay Chandra Basil and the subordinate title is described as belonging to one Sunil Kumar Chatterjee and others. In the remarks column VARNACULAR MATTER it is stated that the land is enjoyed in VARNACULAR MATTER and the subordinate interest has been described as VARNACULAR MATTER and the special incident of that interest has been described as nishkar, It is now well-settled that when a purchaser in a revenue sale wants to bring a suit for a declaration that the land in question forms part of the mal assets of a particular touzi, the initial onus is upon him to show that it is part of the mal assets of the said touzi. That initial onus can be discharged if the plaintiff can show that the rent was paid at any time in respect of the said land to the superior landlords. In the case of Hurryhur Mookhopadhya v. Madub Chunder Baboo and another (14 M.I.A. 152) it was held that said onus can be discharged by proving payment of rent at some time since 1790, or by documentary or other proof that the land in question formed part of the mal assets of the estate at the Decennial Settlement. If such prima facie proof can be given then the burden of proof would be shifted to the defendant, who must establish that his tenure existed before December, 1790. The lower appellate Court in this case held that the plaintiff has discharged the initial onus, but the grounds on which the lower appellate Court came to that decision are in our opinion not tenable. The said Court relied on A and C Registers prepared under the Land Registration Act.It is now well settled on decisions of this Court that A and C Registers kept under the Land Registration Act cannot' determine the question as to whether or not a particular land forms part of the mal assets of a particular touzi. In this connection reference may be made to the judgment of Mr. Justice Teunon in the case of Bipradas Pal Chowdhury v. Manorama Debi , (I.L.R. 45 Cal. 574 : 22 C.W.N. 396) where his Lordship observed as follows: "We have next the registers of revenue-free lands maintained under Bengal Act VII of 1876, and with regard to these registers it is sufficient to say that the District Judge has wholly misapprehended the provisions of sections 10, 33 and 89 of the said Act. It is not suggested that the grants or tenures in question have ever been up to now the subject of judicial proceedings or of any report to the Board of Revenue or declared valid by competent authority. Obviously, therefore, they could not find a place in the register of revenue free lands, and their omission therefore is of no significance." In this case the lands in question were entered in A Register and from that fact the lower appellate Court had come to the conclusion that the land in question form part of the mal assets. This conclusion in our opinion is not to be upheld. What is done is that all lands which have been determined to be lakheraj by judicial decisions or otherwise are entered in B Registers and all remaining lands are entered in A Registers. If a land is entered in B Register, it implies that the said land has been determined by judicial decision or otherwise as lakheraj, but it does not follow therefrom that a land which is entered in A Register, cannot be a lakheraj land. All that such entry implies is that the Register has not been said land which has been entered in 'A' judicially or otherwise determined. A land may be as lakheraj although it may not be judicially determined as such. Therefore, from the mere fact that the land is entered in A Register no valid conclusion can be drawn as to whether the land in question is lakheraj or not; the land may be lakheraj or may not be lakheraj. The only conclusion that can be drawn is that the land has not been judicially determined as lakheraj. In this case the land in question, as is the common case of both the parties, was not judicially or otherwise determined to be lakheraj land. But even then the defendant would be entitled to contend that it is not a part of the mal assets, that is, it is still a lakheraj land. In our opinion the conclusion which the lower appellate Court has arrived at from the fact of the entry of the said land in the A Register cannot be upheld and should be set aside. But then the appeal cannot be disposed of merely on this ground. The question which remains to be decided is whether or not the land in question formed part of the mal assets of touzi No. 6. independently of the fact of its entry either in A Register or B Register. Mr. Mukherjee appearing for the appellant contended before us that the initial onus is upon the plaintiff to show in the first instance that the land in question formed part of the mal assets of touzi No. 6, and the plaintiff has failed to discharge that onus. He contended that the plaintiff has not been able to satisfy the test laid down by their Lordships of the Judicial Committee in the case of Hurryhur Mookhopadhya v. Madub Chunder Baboo, (14 M.I.A. 152) to which I have already referred. According to him the plaintiff has not been able to show that rent was paid at any time, nor has the plaintiff been able to produce any document from which it can be concluded that the land in question formed part of the mal assets of touzi No. 6. Mr. Mukherjee contended that the only thing which has been produced in support of the plaintiff's case and on which the plaintiff relies for the purpose of discharging the initial onus cast upon him is the settlement record in respect of the said land. I have narrated the contents of the said settlement record. Mr. Mukherjee in the first place contended before us that the entry in a settlement record can not be relied upon for the purpose of discharging the onus cast upon the plaintiff. His argument was that the settlement records are made not with reference to the actual state of affairs but is prepared in a rough and ready manner. For instance, he argued if a land is found to be lakheraj and falls within the geographical area of a particular touzi, then the land would be entered in the settlement record under that touzi but if the person found to be in possession claims to be the owner of the said land, such person would be recorded as raiyat and if the land is found not to be in the possession of the person who claims title to the same but in possession of a tenant under him, then the interest of such person would be described as . Therefore, Mr. Mukherjee contended before us, entries in the settlement records cannot be of any assistance for the purpose of deciding whether or not the land in question forms part of the mal assets. This question as to the effect of an entry like the present appearing in a settlement record came up for consideration before Mr. Justice G.N. Das in an unreported case namely, Sm. Rajabala Haldar v. Sm. Padmabati Dassi, (Appeals from Appellate Decrees Nos. 421 to 439 of 1949). decided on the 27th January, 1954 . Mr. Justice G. N. Das observed as follows: "The effect of an entry like the present came up for adjudication in Second Appeals Nos. 1253 to 1324 of 1932, decided on the 28th February, 1935, by Nasim Ali, J., (unreported). The said Second Appeals arose out of suits instituted by the purchaser at a sale for arrears of revenue, for assessment of rent. The lower appellate Court in those cases was of the opinion that the effect of the entry did not enable the plaintiff to discharge the initial burden which rested on him to prove that the lands in suit formed part of the mal assets of the mahal. This view of the lower appellate court was reversed by Nasim Ali, J. The learned Judge on a construction of the entry, came to the conclusion that the effect of the entry was that the plaintiff succeeded in discharging the initial burden which lay on him to prove that the suit lands formed part of the mal assess of the mahal." The contention which is noted and urged before us was also raised before but was not accepted by this court. In our opinion also this contention of Mr. Mukherjee on this cannot be accepted as sound. He has not been able to show anything to support his contention that in making the entries in the settlements records the officers concerned acted in the manner as indicated by him. In our opinion the entry in a settlement record is evidence of the facts contained therein and raises a presumption of the correctness of those facts. This is laid down in section 103B (5) of the Bengal Tenancy Act where it is provided that every entry in a record-of-rights finally published shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect. In our opinion, the initial onus which is upon the plaintiff would be discharged if there is an entry in the settlement record which supports the plaintiff's contention. This was the view taken not only by Mr. Justice G.N. Das in the case of Sm. Rajabala Haldar to which I have referred but also by a Division Bench of this Court in the case of Kalidas Das v. Dharanidhar Guin, (4) (Appeal from Appellate Decree No. 785 of 1938), decided by Mukherjea, and Roxburgh, JJ., on the 12th July, 1939 (unreported). Mr. Justice Mukherjea as he then was, in delivering judgment in that case made it quite clear that the entries in a settlement record did raise a presumption that the lands in question were situated within the mal assets and it was for the defendants to rebut that presumption. In that case the self-same question arose as to whether or not the lands in suit were part of the mal assets of a particular touzi and whether the plaintiff has discharged the initial onus cast upon him. In that case also reliance was placed upon entries in settlement records by the plaintiff for the purpose of discharging the onus. Mr. Justice Mukherjea, as I have just now mentioned, held that the entries in the settlement records in question did discharge the said initial onus, We, therefore, hold that if there is an entry in a settlement record which indicates that the land in question is part of the mal assets of a particular touzi, then by production of that settlement record the plaintiff would discharge the initial onus which is cast upon him.
(3.) Mr. Mukherjee then contended before us that the entries in question in the present record-of-rights do not indicate that the land in question is part of the mal assets of the touzi in question. His contention is that the said entries are equally consistent with the defendants' case, namely, that the lands in question are not part of the mal assets of touzi No. 6: in other words, his contention is that no definite conclusion can be reached from the said entries in the record-of-rights and that being so the plaintiff cannot be said to have discharged the onus by producing such entries. In support of his said contention Mr. Mukherjee relied on the case of Kamala Ranjan Roy v. If ran Sheikh & ors., AIR 1948 Calcutta 14) . That was a decision given in a Letters Patent Appeal by a Division Bench of this Court. Mr. Justice Mitter in delivering judgment in the said case held that from the record-of-rights produced in the said case it was not possible to say that the meaning of the khatian would necessarily be that the land in question was part of the regularly assessed area of the touzi in question. Although the entry in the record-of-rights in the said case was more or less similar to the entry in the present case, the only difference being that in the said ease the person concerned was described as 'raiyat', whereas in the present case the interest of the person concerned has been described as VARNACULAR MATTER but Mr. Justice Mitter in his judgment in the said case mainly dealt with the question as to the effect of the remark 'nishkar' VARNACULAR MATTER as appearing in the said settlement records and his Lordship held that the said expression Nishkar VARNACULAR MATTER might mean rent-free land and also in a larger sense Lakheraj or revenue-free land and, therefore, it is not possible to hold from the use of the word nishkar that the land in question is only rent-free land and not revenue-free land. We have carefully gone through the judgment of Mr. Justice Mitter. The question as to what would be the effect of the use of the word 'raiyat' VARNACULAR MATTER was not discussed by Mr. Justice Mitter in his judgment in the said case. As I said before Mr. Justice Mitter proceeded to decide the case mainly on consideration of the question as to whether or not the use of the word nishker VARNACULAR MATTER would make the lands part of the mal assets of the particular touzi. Mr. Justice Mitter held that the term 'nishkar' is consistent with the land being revenue-free as much as being rent-free. The question as to what would be the effect after description of the status of the person concerned either as VARNACULAR MATTER or as raiyat came to be considered in the said case of Kalidas Das v. Dharanidhar Guin, (Appeal from Appellate Decree No. 785 of 1938 , unreported) to which I have already referred and which was decided by Mr. Justice Mukherjea, as he then was, and Mr. Justice Roxburgh. In that case the lands were described in the settlement record as nishkar VARNACULAR MATTER by long possession and enjoyment and the defendants have been recorded either as raiyats or as tenure-holders with regard to those lands. Mr. Justice Mukherjea in his judgment in the said case held that according to the settlement records those lands being under a patni and a darpatni and the defendants being tenants in respect of the same, although they were exonerated from payment of rent, they would certainly be within the ambit of mal assets, The entries, according to his Lordship, did raise a presumption that the lands were situated within the mal assets and it was for the defendants to rebut that presumption. We agree with the view taken by their Lordships in the said case. The said view is also supported by the provisions of the Bengal Tenancy Act. Section 102 provides that where an order is made under section 101 (directing survey and preparation of record-of-rights by the local Government), the particulars to be recorded shall be specified in the order, and some of those particulars mentioned are: (a) the name of each tenant or occupant; (b) the class or classes to which each tenant belongs, that is to say, whether he is a tenure-holder, raiyat, etc. (d) the name of each tenant's, landlord; (dd) the name of each proprietor in the local area or estate.;