MAHENDRA NATH SIKHAR Vs. BHABENDRA CHANDRA RAY AND ORS

JUDGEMENT

(1.) I do not propose to say very much with regard to this case, as Mr. Mazumdar agrees that the whole of his appeal depends upon the finding of the Judge in the Court below that there could be no presumption of a rent-free grant in this case. According to the learned advocate it rests upon the question of whether the Judge is right or wrong in coming to that conclusion. It is abundantly clear that whether a lost grant is to be presumed from a given state of facts is a question of fact; that is to say, a Court is not bound to presume a lost grant; it may do so. That is the position in this case. In support of his contention Mr. Mazumdar appearing on behalf of the plaintiff-appellant relied upon the decision in Kiran Chandra Roy v. Srinath Chakravarti , where the Judges of the Calcutta High Court confirmed the decision of the lower Court in its conclusion that "there was a presumption of a lost grant." During the course of the judgment in that case this statement was made:

(2.) The learned Judges of the Calcutta High Court relied upon two authorities (1) Maharani Raj Roop Koer v. Syed Abul Hossein (1879) 6 Cal 394, decided by their Lordships of the Judicial Committee of the Privy Council, a case of a right to a pyne or artificial water-course, and (2) Sri Nath Roy v. Dina Bandhu Sen AIR 1914 PC 48 decided by the Privy Council--a claim to an exclusive right of fishery. The nature of those two cases is only to be stated to realize that it is very different from the nature of the one before me. But apart from that, Kiran Chandra Roy v. Srinath Chakravarti is of no assistance to Mr. Mazumdar for the reason which I have indicated from the statement of the learned Judges:

(3.) In the present case the learned Judge in the Court below has made this statement: