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PLD 1956 Dacca 58

Before Amin Ahmad and Badiuzzaman, JJ

KUMAR BHUPENDRA KISHORE ACHARYYA CHOUDHURY

and others‑Appellants

versus

PROVINCE OF BENGAL and in its place PROVINCE of EAST

BENGAL‑Respondent

Appeal from Original Decree No. 238 of 1946, decided on 26th January 1953.

(a) Res‑Judicata

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-‑Previous suit for fixity of rent‑Court giving no specific findings‑Principle of res‑judicata not applicable ‑Civil Procedure Code, S. 11.

Where in the previous suit on the question as to the fixity of rent there was no specific finding by the Court the question should not be held barred by the principle of constructive res judicata as that issue should have been raised as a substantial issue in that suit.

(b) Permanent tenure with fixed rent

--‑Nature and extent of tenancy‑Onus of proof‑Mere long possession will not make the tenure permanent.

When any tenant claims to hold any land under a landlord, it is his duty to prove the existence, the nature and the extent of interest granted to him by the real owner of the land.

Held, that the initial onus is on the tenant to prove that his tenancy is a permanent one having. a permanent fixed rent.

Simply because tenant has been in possession for a very long period and has paid the same rate of rent and has built super‑structures on the plots with the knowledge of the landlord will not make the tenure permanent and the rent thereof invariable. A landlord has a right to increase or decrease the rent of the tenure held by his tenant, in the absence of any contract.

(c) Bengal Non‑Agricultural Lands Assessment Act, 1936

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--‑Applies only where the tenure and rent is permanently fixed.

(d) Document

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-‑Map‑Prepared without authority and scale Whether can be relied upon‑Evidence Act (I of 1872), S. 87.

In a map (of 1891) neither scale was given, nor was men tioned under whose authority the map was prepared, although it was proved that it was produced from proper custody.

Held, that evidentiary value of the map was nil.

(e) Specific Relief Act (I of 1877)------

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S. 42‑Plaintiff in pos session‑No consequential relief necessary.

Where the plaintiff is in possession, section 42 of the Specific Relief Act is no bar to the maintainability of the suit for a mere declaration.

(f) Limitation Act (IX of 1908)------

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Art. 120‑Suit for declaration of right under Bengal Tenancy Act, S. 111‑A --Whether barred under Art. 120.

Where a suit is brought by a person for the declaration of any of his rights as contemplated by the proviso of sec tion 111‑A of the Bengal Tenancy Act, the suit is within time under Article 120 of the Limitation Act, if brought within six years when his cause of action arose, that is to say, when any injury to his right is threatened such suit is not barred because as ancillary to the relief as to the injury he asks for, he also asks for a declaration that the entry in record of rights, is incorrect and the suit is brought beyond six years from the date when the record was finally published.

Rai Keshab Chandra Banerjee Bahadur and another v. Madan Mohan Poddar and others and Ahmed Hossain Bepari and others v. Digendra Narain Sinha Roy and others 40 C W N 22 rel.

(g) Bengal Non‑Agricultural Lands Assessment Act 1936-----

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S. 17‑Special limitation under section.

Where the plots are not originally included in the suit, special limitation provided in section 17 bars the suit.

A. C. Bhattacharjee and Bimalendra Mitra for Appellants.

M. Asir, Government Pleader, and Raiquddin Ahmed for Respondent.

JUDGMENT

AMIN AHMED, J.

‑This appeal is on behalf of the plaintiffs. It is directed against a judgment and a decree of the Subordinate Judge, 4th Court, Mymensingh, dismissing a suit for declaration that the plaintiffs have permanent Zamindari or tenancy right in the lands described in the schedules of the plaint at an invariable annual rent of Rs. 22‑13‑0; that the assessment made thereof under the Bengal Non‑Agricultural Lands Assessment Act of 1936 (Bengal Act XIX of 1936) is illegal and ultra vires; and that the entries in the record‑of‑rights in respect of the lands of dags Nos. 20, 21, 23, 24, 25, 26 and eastern portion of dag No. 5 which are of plaintiffs' tenancy have been wrongly included by the settlement authorities in the khas khatian No. 1 of the Government instead of including them in' khatian No. 2 of the plaintiffs.

The plaintiffs' case may briefly be stated as follows:

One Shyama Kishore Acharyya Choudhury and others who were 8 annas Zamindar of Pargana Alapsingh in the district of Mymensingh in respect of certain lands in the village called Tegharee (now situated in the Town of Mymensingh) created taluk called taluk Bayard in favour of one Mr. S. Bayard, and in February 1793, the Zamindari right of this taluk Bayard was also sold by the above Zamindar to Mr. S. Bayard. In 1794 the Zamindari interest of this taluk Bayard was separated from the main Zamindari in the name of Mr. S. Bayard and it was numbered as Estate No. 4808, the revenue being fixed at Rs. 301 (sicca), corresponding to Rs. 321‑1‑0 in Company's coin. In 1808 Mr. S. Bayard sold his Zamindari interest to Mr. Tutin and Mr. Tutin in his turn sold this estate to the Government for a sum of Rs. 10,000. On the 25th July 1837, Government settled certain portion of this estate with one Mr. Lagon at an annual rental of Rs. 8‑1p‑7p. and Mr. Lagon sold this to one Mr. Brodie. In 1839 Government settled some other portion of this estate with Mr. Fraser at an annual rental of Rs. 9‑9‑7p. and Mr. Fraser sold it to Mr. Pagson; and in 1843 the Government settled another portion of this estate called Dhupi's bhiti with Mr. Pagson at an annual rental of Rs. 4‑8‑0 and in 1945 these two jamas Rs. 9‑9‑7p. and Rs. 4‑8‑0 were amalgamated at an annual rental of Rs. 14‑1‑7. In 1860 one Mr. J. P. Wise purchased the interest of the two jamas from Mr. Brodie and also from Mr. Pagson, namely, jamas of Rs. 8‑10‑7 and Rs. 14‑1‑7, from Mr. Brodie and Mr. Pagson, respectively, and held them in Kharija taluki right as taluk No. 1 and taluk No. 2, and these were amalgamated into one jama of Rs. 22‑13‑0, the total quantity of land therein being 21 bighas 14 cottas and 6 chataks. In 1872 Ram Kishore Acharyya Choudhury, predecessor‑in‑interest of the plaintiffs, purchased the half share of these two taluks and the other half was purchased by Hari Narayan Roy. Sometime in 1821‑22 during the minority' of Raja Jagat Kishore Acharyya Choudhury. the predecessor‑in‑interest of the plaintiffs, the Court of Wards on his behalf purchased also the half share of Hari Narayan Roy and thus he became 16 annas holder of the said two taluks in permanent right at an invariable annual rent of Rs. 22‑13‑0; and the plaintiffs have now succeeded to the said estate and have been in possession of the same.

The predecessor‑in‑interest of the plaintiffs spent a lot of money for the improvement of the lands in question which were originally unhabitable (patit) lands by erecting buildings and other permanent substantial structures, one of the build ings standing on the plot in question being the residence of the Additional District Magistrate of Mymensingh in respect of which even the defendant (Government) from time to time took leases from the plaintiffs' predecessor. In 1894 the Secretary of State for India in Council instituted a suit being Title Suit No. 41 of 1894, against the plaintiffs' predecessor, Raja Jagat Kishore Acharyya Choudhury, for ejectment from the lands in suit. In that suit the defence taken was that the said Raja was holding the lands in permanent right at invariable annual rental of Rs. 22‑13‑0. On the 25th March 1895, that suit was dismissed. By an order of the Settlement Officer, dated the 4th September 1942, the rent of the tenure in ques tion was enhanced to Rs. 1,013‑13‑0, as fair and equitable rent under the provisions of the Bengal Non‑Agricultural Lands Assessment Act of 1936. Against this order the plaintiffs appealed to the Commissioner of Dacca Division. That appeal being dismissed, the plaintiffs preferred a second appeal to the Board of Revenue and that appeal was also dismissed on the 21st of January 1944. Further between the 29th February 1944, and the 29th March 1944, when the record‑of‑rights was finally published the lands of dags Nos. 20, 21, 23, 24, 25, 26 and eastern portion of dag No. 5, which appertain to the tenancy of the plaintiffs and are within the boundaries of the plaintiffs' land as settled by the Government with them, were wrongly recorded in the khatian No. 1 of the Government as their khas lands. The plaintiffs claim that they have rights as holders of a permanently settled estate under Regulation VIII of 1793 or, in any event, even as tenants under the Government they hold the lands in question in perpetuity at a fixed permanent rate of rent which cannot be enhanced and, therefore, the Bengal Non -Agricultural Lands Assessment Act cannot be applied, and consequently the assessment is ultra vires.

It is also claimed that the assessment is also barred by the principles of res‑judicata as in the previous title suit, that is, Title Suit No. 41 of 1894 between the same parties it was held that the tenure in question was a permanent one and that the rate of rent .was invariable and permanent. The present suit was instituted on the 5th June 1944.

Although the original history of the tenure is admitted by the defendant‑respondent, namely, the Province of Bengal, the defence taken inter alia was that the claim was barred by the law of limitation; that the tenancy was not of a non‑agricul tural land; that it was not a permanent tenure nor was the rent an invariable one; that the plaintiffs were ordinary tenants with limited rights under the Khas Mahal of the Government and that they had no proprietory right whatsoever in the lands in suit ; that the permanent structures and the buildings were made without the permission of the Government; and that the dags Nos. 20 and 21 were never included in the lease of the plaintiffs taken by the defendant from the plaintiffs. It was also denied that the suit was barred by the principles of res‑judicata or that the lands were not liable to be assessed under the Bengal Non‑Agricultural Lands Assessment Act.

The following issues were raised at the trial:

" (1) Have the plaintiffs any cause of action for the suit

(2) Is the suit bad for defect of parties and misjoinder of causes of action

(3) Is the suit barred by principles of estoppel, waiver and acquiescence

(4) Is the suit barred by limitation .

(5) Do the Plots Nos. 20, 21, 5, 23, 24, 25, 26 and 27 of Khatian No. 1 appertain to the tenancy of the plaintiffs and were they wrongly included in khatian No. 1 Are the plaintiffs in possession thereof or are they in the khas posses sion of the defendant

(6) Is the plaintiffs' tenancy a permanent one with fixity of rent or is it .an ordinary tenancy with variable rent:

(7) Is the Bengal Non‑Agricultural Lands Assessment Act of 1936 applicable to the lands in suit and was the assessment of rent made there-under legal and fair

(8) Can the plaintiffs get any of the declarations as claimed

(9) To what relief, are the plaintiffs entitled "

Issues Nos. 2 and 3 were not pressed and all the other issues were decided against the plaintiffs with costs by the learned Subordinate Judge holding among other things that, the ques tion as to whether the tenancy was a permanent one or not, was set at rest by the decision of the previous suit, being Title Suit No. 41 of 1894, and could not be reagitated in the present suit, that the question as to whether the rent was invariable or not was not barred by the principle of res‑judicata ; that the rent was variable and, therefore, it was rightly enhanced under the Bengal Non‑Agricultural Lands Assessment Act; that the suit was also barred by the law of limitation; and that it was also hit by section 42 of the Specific Relief Act.

Mr. Bhattacharjee who appears for the appellants argues that inasmuch as the previous Title Suit No. 41 of 1894 was between the same parties, that is, by the Secretary of State against the predecessor‑in‑interest of the plaintiffs, the learned Subordinate judge ought to have held that the present suit in respect of the issue whether the tenure is a permanent one at a permanent rate of rent, is barred by the principle of res judicata. Mr. Bhattacharjee has taken us through the pleadings and the judgment of the previous suit and has argued that it will appear from them that in that suit although the plaintiffs claimed ejectment on the ground that the defendant was a trespasser, the defence taken was that the defendant was hold ing the land in question as a permanent tenure and that the rent of that tenure was permanently fixed, and there was a specific issue, being issue No. 5 to the effect whether the defendant had permanent right to the land in suit. Mr. Bhatta charjee refers to the following passages of the written state ment, Exh. 4 of the previous suit

Paragraph 5.--The defendant from the time of his prede cessors‑in‑interest is in possession of the suit land for more than 60 years and has been enjoying the same from the time of his predecessors‑in‑interest by construction of very valuable pucca buildings, structures, gardens, etc., in the presence of the authorised agents of the Government and within their knowledge and without any objection from them by making improvements and the defendant from the time of his predecessors‑in‑interest got his name mutated in the Collectorate and included in the Touzi and the Govern ment have all along accepted the rent settled by them and in the year 1891 the two jamas mentioned in the paragraphs Nos. 6 and 7 of this written statement having been amalga mated and one Touzi made, rents are being received accordingly. The defendant has, from the time of his predecessor‑in‑interest, permanent and transferable right in the suit land and after a series of transfers in succession at a very high price, this has come into the possession and ownership of the defendant. And these transfers and possession and ownership of those purchasers have been successively admitted and recognised by the Govern ment.". . . .

Paragraph 6.‑" On the south by the border line of waste land Dhupi (washerman) Bhiti and bearing an annual jama of Rs. 9‑9‑7 pies, which is not liable to alteration.'............

Paragraph 7.‑" The lands butted and bounded by the aforesaid boundaries having been settled with Mr. Brodie by the Government in Kayemi Mokarari right (permanent and heritable right) at an annual permanent rental of Rs. 8‑11‑0." . . . . .

Paragraph 9.‑" Government have always approved the purchase of the successive purchasers and accepted rents from them and thus admitted the purchasers to be their tenants having permanent and transferable right with a fixed jama."

In this connection Mr. Bhattacharjee also refers to the following passages in the judgment of the learned Subordinate judge in the previous Title Suit No. 41 of 1894, Exh. 3 ;

" I am also inclined to bold for the following reasons that the defendant has a permanent and transferable tenancy right which the plaintiff is not entitled to determine by notice

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(3) The rent payable for the land remains unaltered since the settlement. .

(4) The land was let out for dwelling purposes and the lessees erected buildings and other permanent structures thereon with the full knowledge and acquiescence of the revenue authorities without the least apprehension of being turned out. If they had any such apprehension they would never have raised such structures which undoubtedly entailed heavy costs. They were certainly under the belief that the tenure of their occupation was permanent and that they could transfer the land with the structures whenever, it might be necessary. Subsequent events show' that the expectations were fully realised and that transfers were duly recognised without any objection.

(5) Again the Revenue Commissioner's letter No. 612, dated the 13th December 1841, was sufficient to create a general impression that the settlements of the lands of the khas taluk Bayard were of a permanent (Mudance) nature. The bona fide purchasers like the defendant and his father should under such circumstances be held to be not liable to ejectment."

In this connection, Mr. Bhattacharjee relied on the case of Dhanna Mal and others v. Moti Sagar (31 C W N 677). In that case the tenants claimed permanent tenancy. In a previous suit between the parties rent was enhanced and there was an appeal against that decree. While dismissing an appeal from that decree the Judge remarked that the tenancy was a permanent one and on an application for review by the landlord, the judge expressed the view that he had mis-appreciated the arguments but he dismissed the application for review as in the decree there was nothing adverse to the landlord. It was held that the question whether the tenancy was a permanent one or not could not be urged as res‑judicata by the tenant, although no appeal from the final decree was preferred by the landlord nor could the landlord rely on that judgment as res‑judicata for his contention that the tenancy was not a permanent one. Mr. Bhattacharjee referred to the following passage in that case

"The order enhancing the rent is, however, not without importance in the present litigation. The defendants, if their contention that the tenancy was permanent had been well founded, could have had that order discharged on appeal. They did not appeal and they cannot now be heard to say that a less rent than the Rs. 25 which they have since paid without protest was alone properly payable. It may well be that neither party to the 1905 litigation was eager to put prematurely to the test the question so stoutly litigated in the present proceedings, but, as is shown by the plaintiffs application for review, and by the defendants' submission, without appeal, to pay an enhanced rent, the hesitation on the part of the defendants was in this matter more pro nounced than the reluctance of the plaintiff. The actual increase of rent was not a very serious matter, and it is not improbable that the defendants were content to submit to it, accompanied as it was by the District judge's provisional expression of opinion favourable to their main contention, rather than risk an appeal, the result of which might have deprived them of that opinion for whatever it was worth."

Mr. Asir who appears for the respondent point out that the previous Title Suit No. 41 of 1894 failed on the ground that the notice of ejectment was bad in law and it was not necessary for the learned judge to go into the other question as to whether the tenancy was a permanent one and, if so, whether it was one at a permanent rate of rent. In any case, in respect of the fixity of rent the learned judge never held that it was fixed but all that he said was that the rent remained unaltered, that is, it was uniform since the settlement. But Mr. Bhatta charjee urges that even if the learned judge did not come to any finding as to the fixity of rent, it is barred by the principle of constructive res‑judicata and he relies on explanation 4 of section 11 of the Code of Civil Procedure. In support of his contention Mr. Asir has relied on the case of Nundo Lall Bhattacharjee and others v. Bidhoo Mookhy Debee (I L R 13 Cal. 17). This was a suit for ejectment and in this the defence was that no notice to quit was served and that the tenure was a permanent one. The suit was dismissed but in a subsequent suit for ejectment in respect of the same holding between the same parties the defence taken was that the tenure was a permanent one and that the plaintiff was estopped by the conduct of his predeces sor‑in‑title from asserting against the defendant that the tenure was not a permanent one. It was held that where the previous suit failed on a preliminary point, a finding as to other point in that suit on merits would not bar the defendant from relying on the same defence once again. We may refer to the follow ing passage in the judgment of that case:

" No doubt it has been held by a Full Bench of this Court that even where the defendant does not get the issue decided against him inserted in the decree, it is binding between the parties in a subsequent litigation. But this procedure was not followed in the case of Run Bahadoor Singh v. Lucho Koer (LR 121 A 23 : I L R 11 Cal. 301 (P. C).), "and in regard to that their Lordships state as follows:

The widow has not appealed against the decree, nor could she, because it is in her favour. But she has appealed against the finding that the brothers were joint in estate: It may be supposed that her advisers were apprehensive lest that finding should be hereafter held conclusive against her. This could not be so inasmuch as the decree was not based upon it, but was made in spite of it."

" Here, in the former suit between the present parties, the decree dismissing the suit was not based on the finding adverse to the defendant in that case, but inspite of it, we think, therefore, after looking at the decision of their Lord ships in the Privy Council, that the previous decision is not binding between the parties in this suit."

Mr. Asir has also relied on the case of Barhamdeo Narain Singh v. Mackenzie and another (I L R 10 Cal. 1095). This was also an ejectment suit filed by the landlord and the issue raised in this case was whether the alleged notice was sufficient and whether the defendant was entitled to right of occupancy, the trial Court dismissed the suit finding upon the admitted facts that the notice was not sufficient, but decided the other issues on merits and held that the defendant was not entitled to right of occupancy. In that case it was held by Mitter and Pigot JJ. that the finding upon the question of notice was quite sufficient to dispose of the suit and the Court should not have pro ceeded to determine the other issues raised in the suit. Their Lordships observed as follows:

" In this case the facts relating to the service of notice being all admitted by the plaintiff, it seems to us that the case clearly came within the last three lines of section 204. It is quite clear that the finding upon the question of notice, which finding was based upon the admitted facts of the case, was quite sufficient to dispose of it finally."

In this connection the case of Thakur Magundeo v. Thakur Mahadeo Singh and another (I L R 18 Cal. 647), has also been referred to. This is also an ejectment suit filed by the landlord against his tenant.

In this case the right bf occupancy was claimed by the tenant but the landlord urged that the question whether the tenant had an occupancy right, was barred by the principle of res -judicata as although the previous ejectment suit was dismissed on the ground of bad notice it was also held that the tenant had no occupancy right. It was held that the defendant‑tenant was not precluded from raising the same plea of right of occu pancy inasmuch as that issue was not finally decided in the previous suit In this case also their Lordships referred to the above case of Run Bahadoor Singh v. Lucho Koer. In answer to the case of Thakur Magundeo v. Thakur Mahadeo Singh and another, Mr. Bhattacharjee has referred to the following passage in the concluding portion of the judgment of that case

" It appears to us that the last element is wanting, namely, 'finally decided'. We think that the finding of the Court in the previous suit was not final, inasmuch as the decree was not based upon it, and there could be no appeal against it, because the decree was in favour of the party against whom the finding was recorded."

Mr. Bhattacharjee has tried to distinguish this case by saying that it was held by their Lordships as not being finally decided because of the fact that the decree was in favour of the party who could not appeal.

In this connection Mr. Asir has strongly relied on the case of Midnapur Zamindari Company Limited v. Naresh Narayan Roy (L R 48 1 A 49 (Supra)), and has urged that this decision by their Lordships of the Privy Council in the said case is not only an authority for the proposition that the present question is not only not res -judicata, but it also meets the contention of Mr. Bhuttacharjee that in those cases where it is not open to an aggrieved party to file an appeal arid he, therefore, does not, it will not be res‑judicata but where it is open to a party to prefer an appeal and he does not, it must be held that the principle of res -judicata operates. This was a suit by a Zamindar for recovery of possession of certain char lands on giving notice to termi nate the tenancy, and the tenants pleaded in defence that they had occupancy right and that the suit was premature. The suit was dismissed and it was held that there was no occupancy right but that the suit was premature. Against this decree an appeal was preferred by the Zamindar‑landlord to the High Court and the tenants also filed a cross‑objection against the finding of the trial Court that there was no occupancy right. The High Court affirmed the decree on the ground that the suit was premature but in disposing the cross‑objection it came to a finding that the tenants had no occupancy right. Their Lordships of the Privy Council held that in a subsequent suit the question of an occupancy right was not res‑judicata against the defendant appellants since the tenant succeeded upon the other plea, namely, that the suit was premature, but it was the duty of the appellants to displace that finding. On the basis of this case cited by Mr. Asir and also on the findings and observations of the learned Judge on the points other than that of notice in the previous suit Mr. Asir maintains that it cannot be said that the decision on these other points will operate as res‑judicata in the present suit. It seems to us that there is considerable substance in this contention of Mr. Asir. It appears from the judgment of the learned Subordinate judge in that suit that it was admitted by the Government Pleader appearing for the plaintiffs that the defendant's tenancy subsisted until the expiry of the period mentioned in the notice served on the defendant. After setting out the notice in the judgment the learned Subordinate judge observed as follows:

" It is clear from the above that the notice ignored the defendant's tenancy and treated the defendant's possession as that of a trespasser without any right or title. The plaint has been framed in a similar tone but in more clear terms. Now when the notice treats the defendant as a mere tres passer, denying his tenancy, I think it is quite inconsistent to say that that notice was intended to determine the defend ant's tenancy and did actually put an end to it. It was certainly not sufficient to inform the defendant that the Government intended to determine his tenancy. If he had understood that such was the intention of the Government he might have given up the land claiming adequate compen sation for the removal of his buildings and probably there would have been no necessity for the institution of the present suit. For all the reasons given above I arrive at the conclusion that the notice is bad in law and did not determine the defendant's tenancy whatever its character may be, and that the suit should fail on that ground."

We also find that inasmuch as the learned judge held that the notice was bad on the admitted fact that the tenancy, whatever its nature might be, subsisted until the expiry of the notice served on the defendant‑the plaintiffs' case being one of trespasser and the suit having failed on the ground of bad notice, the decree in that suit was a decree not based on the findings of the other points in that suit but inspite of these findings of notice and the learned judge need not have pro ceeded to dispose of other points on merits. We also cannot agree with Mr. Bhattacharjee that although in the previous suit on the question as to the fixity of rent there was no specific issue and specific finding by the learned judge, that question of fixity of rent should also be held barred by the principle of constructive res‑judicata as that issue should have been and could have been raised as a substantial issue in that suit.

Arising out of this point as to res‑judicata it is next argued by Mr. Bhattacharjee that inasmuch as in the present suit the learned judge has held that the question as to whether the tenure is permanent or 'not could not be gone into in the present suit as it was res‑judicata, it necessarily follows from that finding that it is permanent tenure with a fixed permanent rate of rent, for fixity of rent is an incident of permanent tenure.

It is true that although the learned Judge did not say in so many words that the question of permanent tenure was barred in the present suit by the principle of res‑judicata, in his judgment he observed as follows

" The question whether the tenancy is permanent or not is not and cannot be the subject matter of the present suit because that question has been set at rest by the decision in the previous suit between the parties. In the year 1894 the Secretary of State for India in Council brought a suit for ejectment against Raja Jagat Kishore Acharyya Choudhry predecessor‑in‑interest of the present plaintiffs with regard to the lands of this tenancy of Rs. 22‑13‑0 within the taluk Bayard on the allegations that Raja Jagat Kishore Acharyya Choudhury and the previous lessees of the lands had no permanent and transferable interest therein. It appears from Exh. 3 that this suit was contested by Raja Jagat Kishore Acharyya Choudhury. The judgment goes to show that the suit for ejectment was dismissed as it was found by the Court that Raja Jagat Kishore Acharyya Choudhury had a permanent and transferable tenancy right in the lands of the tenancy which the Government was not entitled to determine by notice and that the notice that was served on Raja Jagat Kishore Acharyya Choudhury was also bad in law. Thus the previous decision is binding on the parties and in view of this previous decision the Province of Bengal is precluded from saying that the tenancy is not permanent and that the plaintiffs are ejectable ";

but, we are unable to agree with the learned judge that even the question as to whether the tenure was permanent or not was set at rest by the decision in the previous suit (Title Suit No. 41 of 1894), for we have already indicated in connec tion with the first point as to res‑judicata that the previous suit failed on the ground of bad notice and. not on account of the findings of other issues nor for the reasons stated here after can we accept the argument of Mr. Bhattacharjee that every case of permanent tenure is a case of a permanent tenure with an invariable rate of rent.

It is also urged by the learned Advocate for the appellants that even if we do not hold the view that the present suit is not barred by the principle of res-judicata as contended by the learned Advocate for the appellants, even then on the terms of the patta, kabuliyat and other documents and data, the Court below ought to have held that the tenure of the plaintiffs is a tenure in perpetuity at an invariable rate of rent. In this connection Mr. Bhattacharjee refers to the following terms in the patta (Exh. 5), dated the 23rd April, 1895.

" It is the land within the aforesaid boundaries‑the annual Shaliana Chukani jama rental of which is Rs. 9‑9‑7 pies in Company coins‑which you shall have to pay every year without any objection . . . . . . . . . . . . . . Annual rent including all Sherista costs Rs. 9‑9‑7 pies."

Mr. Bhattacharjee also refers to these terms in Robakary, Exh. 2." the fixed rent of the Bhiti lands " in item No. 1 (page 109, Part II of the Paper‑Book); " Fixed Bhiti rent " (pages J.10‑12, Part II of the Paper‑Book) mentioned in column 3 against Mr. K. Brodie's lama of annual rental of Rs. 8‑10‑7 p., and Mr. Pagson's lama of Rs. 9‑9‑7 p.; to the terms of Exh. 1 (f), a Kabala executed by R. R. Pagson in favour of one Mr. Thomas Alen Aish, dated the 21st May, 1860 : " For an unlimited period at a fixed annual lama of Rs. 14‑1‑7 pies "; to Exh. 1 (g), a Registered deed of kabala executed by Mr. J. P. Wise in favour of Ram Kishore Acharyya Choudhury, dated the 4th October, 1872, showing a lama of Rs. 14‑1‑7 pies mentioned in item No. 63 and a lama of Rs. 8‑11‑0 mentioned in 'item No. 64 and also to Exh. 1 (d), a registered kabala executed by Mahim Chandra Roy Chowdhury in favour of Jagat Kishore Acharyya Choudhury, dated the 24th September, 1881, where the same Jama of Rs. 14‑1‑7 pies is mentioned. In this connection Mr. Bhattacharjee has also referred to the defence of the present plaintiffs in the previous Title Suit No. 41 of 1894 and also to the findings of the learned judge in that suit to the effect that the rent payable for the lands remained unaltered since their settlement. Mr. Bhattacharjee has also relied on Exhs. 14 and 14 (a) (registered deeds of leases granted by Jagat Kishore Acharyya Choudhury, to the Secretary of State for India in Council, dated the 23rd January, 1908, and 24th January, 1916, respectively); Exh. B (C. S. khatian of Taluk Bayard) showing a jama of Rs. 22‑13‑0 at pages 212‑213 of the Paper‑Book; Exh. 8 (certified copy of the report of Tara Nath Bose, D.C., dated the 19th May, 1891) showing the same jama ; Exh. 10 series (Dakhilas for rents, dated the 2nd December, 1914) showing Rs. 22‑13‑0 in the column for rent in cash as well as in the column for total ; and also Exh. 6 (certified copy of letter from the Commissioner of Revenue, Dacca Division to the Collector of Mymensingh, dated the 13th December, 1841). Our attention has been particularly drawn to the following passages in the different Exhibits. In Exh. 6 :‑

"On the other hand if from any cause the purchase should not be effected, the leases must be continued to the parties holding them. But to enable me to obtain the necessary confirmation you will forward exact copies of them, report on each case fully, in the manner as if it were a permanent settlement" ;

in Exh. 2, the Robakary, dated the 26th May 1845, it is stated as follows:

"Thereafter a letter No. 55, dated the 5th October 1841, having been written from this hatchery in respect of settle ment of the Mahals, etc., to the Commissioner, in reply to which in the letter No. 612, dated the 13th December, of the same year written by the aforesaid learned Commis sioner, there having been mention of Dayemi settlement under section 44 of Act VIII of 1 93, and by tile paragraph 4 of the said letter, order has been passed for filing separate report for granting separate settlement.";

and in item No. 4 of the said Exh. 2 (Robakary) at page 114 of the Paper‑Book it is also stated as follows:

"After that on the 24th April 1845 A. D. the aforesaid Saheb having expressed his intention to take patta in respect of the fallow Bhiti land of Dhubi having land measuring 1 pura 3 cottas equivalent to 3 bighas 12 cottas situated within the boundaries mentioned in the separate plan and lying to the south of his home‑stead, rent of the same was settled at Rs. 4‑8‑0 at the rate of the. fixed annual rental of Rs. 4‑8‑0 and Rs. 9‑9‑7 pies, on account of Mr. Clark's land‑that is, the total of the old and current rental being Rs. 14‑1‑7" (the Bengali words used in respect of the rental being Shaliana Chukani jama).

Mr. Asir contends that the initial onus of proof that the tenancy is a permanent one at a permanent rate of rent, is on the tenant and that unless it can be proved that the land lord has by a definite contract agreed to give a permanent tenancy at a permanent rate of rent, it will not do for the tenant simply to urge that for a considerable long period rent has been uniform or that the permanent structures have been built on the lands of the tenancy with the knowledge of the landlord or that the interest of the tenant has been transferred from time to time or has been heritable. In answer to the facts pointed out by Mr. Bhattacharjee, Mr. Asir has urged that nowhere either in the patta or in the kabuliyat has it been stated that the tenancy is a perpetual one at a permanent rate of rent. On the other hand, the documents will show other wise. In this connection Mr. Asir refers to the entry in Exh. 2, which is the Robakary, at page 103, Part II of the Paper‑Book under column 4, relating to the nature of settle ment and the name of the grantee, where the following appears:

"Settlement by separate pattas without fixing any period (Bemeadi) in favour of Mr. K. Brodie, Mr. Watt, Mr. (Illegible), Mr. (Illegible), Mr. Pagson and Mr. Kerani"; and he also refers to the following in paragraph 1 of the said Exh. 2 at pages 104‑5 of Part II of the Paper‑Book

"According to the order of the Government communicated by the letter dated the 6th January 1935, as mentioned in paragraph 5 of the aforesaid letter, there is no prohibition in building kuthis (pucca houses) and making gardens with out growing paddy, sugarcane and Chhan (thatch), etc., and jungles. Therefore, in the circumstances stated above, herein below is given full description of the manner in which this Mahal has been settled by granting Bemeadi (no fixed period being mentioned) Pattas".

It is also pointed out by Mr. Asir that it cannot be said that the rent has been the same throughout, for there has been a variation of the annual rental at least twice. Of course this variation is very small and according to Mr. Bhattacharjee this has been done in order to make it a round figure. It is true that the original jama of Rs. 8‑10‑7 pies in 'respect of Mr. K. Brodie which was created in 1837 was raised to Rs. 8‑11‑0 according to Exh. 1 (g), dated the 4th October 1872, but when the two jamas of Rs. 14‑1‑7 pies and Rs. 8‑11‑0 were consolidated in 1891 it was raised from Rs. 22‑12‑7 pies to Rs. 22‑13‑0. As to the letter written by the Commissioner, which is Exh. 6, Mr. Asir points out that from the passage quoted above it will appear that it was never the intention of the Commissioner to give a permanent settlement. If that were so he would not have said "as if it were a permanent settlement" and secondly, the use of the word "Bemeadi" and the words "Diemy Settlement" in Exh. 2 should be construed with reference to the context and all the terms of the Patta and Kabuliyat in order to determine the nature and extent of the interest of the tenancy.

In support of his contention that a permanent tenure means a perpetual tenure with a permanent rate of rent, Mr. Bhattacharjee has cited the case of Mst. Afzal‑un‑nisa in substitution for Haji Allah Bakhsh and others v. Abdul Karim and others (23 C W N 966). This is a suit for ejectment filed in respect of certain plot of land in the suburbs of Delhi on the ground that the defendants were tenants at will. The defence was that the land was originally let out as a permanent tenure for building purposes and that from its inception it was such. The Chief Court held that the defendant was a permanent tenant. Mr. Bhattacharjee stresses the following passage in that judgment:

"In any case the view of the Chief Court is clearly right, that once it is settled that the original bargain was for a permanent tenancy at a fixed rent all question of enhance ment is necessarily gone unless such a proceeding is authorised by Statute".

In that case there was no document showing the terms of the tenancy in existence and it was admitted that the res pondent's predecessors‑in‑title were invited to occupy the land for building purposes by the predecessor of the appellant in 1859, that from that time onward a uniform and fixed rent was paid and in some of the receipts thereof the landlord used the term "permanent" with reference to the rent, and there was also a distinct acknowledgment in the several deeds of the houses built that the houses themselves were held by the tenants by virtue of a permanent tenancy. But, we may at once say that the facts of that case are not at all on fours with those of the present case. In the present case the origin of the tenure is known and the document relating to the same is also in existence and, therefore, the ruling in that case has no application to the facts here.

In support of his contention that where the land is found to be heritable and transferable as it is in the present case, there is the presumption that the rent is also fixed and on account of such presumption the onus will lie on the land lord to prove that it is not so, Mr. Bhattacharjee has also cited the case of the Port Canning and Land Improvement Co., Ltd v. Srimati Katyani Debi (24 C W N 369). The following passage in that case has been referred to "Before proceeding further their Lordships desire to observe that the plaintiff Company in 1895 put up the tenure in question to sale for arrears of rent. They admit that it is heritable (mouroosi), and by their conduct in trying to bring it to sale, they admitted it to be transferable ; in other words, that it is a permanent, heritable and trans ferable tenure. The only, question is whether the rent is fixed as the defendant alleges, or is liable to enhancement from time to time under the provisions of the Tenancy Act. Ordinarily the two admitted characteristics would create a presumption in favour of the tenant, and throw on the plaintiff the onus of showing that the tenure is wanting in the characteristics of fixity of rent. But assuming that the onus lay on the defendant, their Lordships are of opinion that she has fully discharged it".

On the question of onus Mr. Bhattacharjee relies also on the case of Nilratan Mandal and others v. Ismail Khan Mahomed (311A149), and the case of Kumar Manmatha Nath Mitter v. Sarada Prosad Chakravarty (58 CLJ157). Mr. Bhattacharjee has particularly referred to the following observations of Guha and Bartley JJ. in the case of Kumar Manmatha Nath Mitter v. Sarada Prosad Chakravarty.

"The burden of proof was on the landlord to establish the conditions, and if the landlord could not establish that by the conditions under which the tenure was held he was entitled to enhance the rent, his claim for enhancement must fail. In the case before us, the rent was changed once in the year 1818, and from that fact only we are asked to hold that the rent of the tenure was enhancable, the con ditions under which the tenure was held being that rent could be enhanced by the landlord".

But we notice that in a passage preceding the above their Lordships observed as follows :

"The primary onus on the tenant was shifted on to the landlord by the evidence before the Court as to the existence of the tenure in the year 1818 and by the further evidence showing pre‑existence of the same. See in this connection the case of Annada Chandra v. Kunio Behari (8 C L J 177). If the tenure in question has been held from the time of the permanent settlement, its rent could not be enhanced except as provided by section 6 of the Bengal Tenancy Act".

As to the question of onus and other points relating to permanent tenure, Mr. Asir has relied on the case of Secretary of State for India in Council v. Maharaja Luchmeswar Singh (16 1 A 6). This was a suit for ejectment and the defence set up was that there was a permanent tenure as the tenant held the plot in suit for a period of 80 years at a low uniform rent, and it was held that there was no permanent tenure. Mr. Asir refers to the following passage from the judgment of their Lordships of the Privy Council:

"Under these circumstances their Lordships think there is no substantial doubt that the Courts below, who have both decided that the Government cannot establish the inference that they are perpetual tenants, are right. The Government undoubtedly are tenants of the Darbhanga Rai. It is for them to show why the landlord may not recover his property, and they can only do that by proving that there is some agreement between them and their land lord that they shall have something more than the ordinary tenancy at will or from year to year. All they offer is some conjecture of such an agreement founded simply. on their long possession at a uniform rate of payment. If we could not find out the origin of these things there would be strength in that argument, but as the origin of them is known the argument loses its force. In fact, the possession is not difficult to explain in other ways. It is not the business of the plaintiff to explain the possession ; it is the business of the defendants to show that it leads to the inference of a perpetual tenancy' .

This case was also relied on by Rankin C. J., in the case of Kamal Kumar Dutta and another v. Nanda Lai Duley (33 C W N 211), to which case hereafter we shall refer in extenso.

Mr. Asir urges that even if the tenure is permanent, it does not follow that the rent is permanently fixed and in support of this he cites the case of Krishnandra Nath Sarkar v. Kusum Kamini Debi (31 C W N 514 : 541 A 48). This is a case for enhancement of rent under subsection (1) of section 7 of the Bengal Tenancy Act. The defence taken was that the rent was fixed in perpetuity according to the terms of the Patta. On the con struction of the Patta it was held that the landlord had not abandoned his right to enhance the rent. We have been referred to the following passage in that case "It was not disputed that under the terms of the said patta the tenure created was a perpetual and hereditary one, having regard to the terms you and your sons and grand sons, etc., in succession, will remain in enjoyment and possession' etc. This, however, does not in law involve that the rent specified is therefore fixed in perpetuity, and it was contended that upon the true construction of the patta there was nothing to show that the rent was fixed in perpetuity, and that the plaintiffs‑respondents were entitled to sustain their claim for an enhancement of the rent. The whole question therefore turns upon the true construction of the patta".

The case Shankarrao Dagadujirao Jahangirdar v. Sambhu Lhallad Nathu Patil (45 C W N 57) was also cited before us. It is also a case of the Judicial Committee of the Privy Council., In this case, the cases of Dhanna Mal and others v, Moti Sagar and Krishnendra Nath Sarkar v. Kusum Kamini Debi, were also referred to; and it was observed by their Lordships that the right of enhancement of rent was not applicable to tenures which were perpetual. Mr. Asir has also cited the case of Abdul Hakim Khan Chaudhuri and others v. Elahi Baksha Sha and others (29 C W N 138) and Kamal Kumar Dutta and another v. Nanda Lai Duley. These two cases discussed almost all the former cases and both of them relate to non‑agricultural holdings. In the cases of Abdul Hakim Khan Chaudhuri and others v. Elahi Baksha Sha and others, Chakravarti J. very exhaustively laid down the elements and principles necessary to raise pre sumption of permanent tenancy in non‑agricultural holdings. Rankin C. J. also in the case of Kamal Kumar Dutta and another v. Nanda Lai Duley, discussed the cases of Abdul Hakim Khan Chaudhury and others v. Elahi Baksha Sha and others, Secretary of State for India in Council v. Maharaja Luchmeswar Singh and various other cases. We can do no better than to quote in extenso the relevant observations of their Lordships in those two cases. Chakravarty J. in the case of Abdul Hakim Khan Chaudhury and others v. Elahi Baksha Sha and others, observed as follows:

"I shall now briefly refer to some of the principles which underlie a question of this nature as between landlord and tenant and I am here speaking only of the non‑agricultural holdings created before the Transfer of Property Act of 1882.

"When a tenant claims to hold land as a tenant under the landlord, the tenant must prove the nature and the extent of the interest which the landlord, the owner of the full rights, granted to him and thereby put a limitation to his own rights. In this connection I shall quote a few passages from the decision of Lord Hobhouse in the case of Secretary of State v. Luchmeshar Singh. The Judicial Committee referred to this case and re‑stated the law in these words

That permanent right of occupancy can only be obtained by a tenant by custom or by a grant from an owner of the land who happens to have power to grant such a right or under an. Act of the Legislature The granting of a permanent right in land is a matter of considerable impor tance and usually is evidenced by appropriate deeds. The Transfer of Property Act must have had regard to the habits and practice of the people of Bengal when it was made appli cable to them. Before the Transfer of Property Act there is no Statute dealing with homestead land as distinguished from agricultural land, as to which numerous Statutes, beginning with the regulations passed at the time of the permanent settlement, down to the passing of the Tenancy Act in Bengal in 1885, regulate the relationship between the land lords and the tenants. There are numerous judicial deci sions with reference to agricultural land and they have no direct bearing on the question now at issue.

"The cases, some of which I shall presently discuss, pro ceed upon two broad principles and some of them rely upon a combination of both, whenever the inference of permanency of the tenancy has been made in favour of the tenant when the terms of the original tenancy could not be directly proved. The first principle is, that in cases where the origin of the tenancy is unknown, and its inception is lost, in antiquity the principle of a lost grant has been invoked by the tenant and from the conduct of the parties and the surrounding circumstances, the Court has been asked to presume that the tenancy was a permanent one. The conduct of the landlord in recognizing succession, transfer and in standing by when pucca buildings have been raised upon the land, have been mainly relied on in finding out the terms of the lease at its inception.

"The second principle relied upon is that of equitable estoppel against the landlord, from showing that the lease was a terminable one . . . . .

" An analysis of the cases cited before, in which presump tion of permanency was made, shows that the following elements existed in these cases, viz., first, the origin of a tenancy for residential purpose must be unknown; secondly, existence of permanent pucca buildings on the lands built long before any controversy arises and' that to the knowledge of the landlord; thirdly, uniform payment of rent ; fourthly, recognition of successions and transfer by the landlord. Many cases were decided upon the admission by landlords as to permanency of the tenure in various ways but these cases are based on a different consideration as also the cases in which an equitable estoppel is raised against the land‑lord. It seems to us that the absence of either of the elements Nos. 1 and 2 as stated above would be ordinarily fatal to any claim of permanency on the theory of lost grant.

"Absence of the 3rd and the 4th elements usually would raise difficulties in the way of raising the presumption, but may not be decisive if there are other circumstances in aid of

the presumption."

In the case of Kamal Kumar Dutta and another v. Nanda Lal Duley, Rankin, C. J., observed as follows:

" The principles applicable to cases of this class may be stated as follows

"(1) When a person claims to hold land as a tenant under a landlord it is for him to prove the existence, the nature and the extent of the interest which the owner of the full rights has granted to him.

"(2) The terms of a holding as between landlord and tenant must in these cases be a matter of contract, either expressed or implied.

"(3) The legislature, as regards this Province, has regulated the terms of agricultural holdings. The letting of land for residential purposes is regulated by the Transfer of Property Act of 1882, but from the operation of this Statute old tenancies, such as those now in question, are excluded by section 2.

" (4) Ordinarily the person who sets up a contract will be required to give reasonable particulars and direct proof of the contract relied upon, but in the case of tenancies proved to be of long standing this principle is inapplicable, and from the history of the tenancy and the circumstances of the case it is open to the tenant to show that the origin of the tenancy being unknown the correct inference is to the effect that the right granted to the tenant and enjoyed by him is a permanent right.

" In addition to these principles of law we have to bear in mind certain general considerations of fact applicable to Indian conditions prior to the Transfer of Property Act, that is, to a period which ended about fifty years ago : (a) It was not unusual and is in no way incredible either that an owner of land should mean to give a permanent right for residential purposes to a tenant in an Indian village or that the tenant should‑ be content to take such a right by mere oral agreement coupled with possession. (b) The fact that a tenancy was for residential purposes in no way involved of itself that the tenant's right to the land was to be per manent as the land could be used for kutcha structures to be erected by the tenant. (c) In ordinary circumstances documents are difficult to preserve in India and, in a case like the present are little likely to survive for a hundred years. (d) Lastly there is the consideration remarked upon by Chakravarti, J., in Abdul Hakim's case : 'The fact that a tenant is allowed to continue in possession of land for generation without alteration of the rent is a common occurrence in this country and is usually attributable to the reluctance of a landlord to eject a tenant from his home so long as he does not make himself objectionable and regularly pays his rent . . . . . . In the judgment of Chakravarti, J., in Abdul Hakim's case, the principle relied on by the tenant is stated to be 'the principle of a lost grant.' This seems to me to introduce from the English law of easements, an element which is both un necessary and confusing. For the present purpose we are troubled by no rule that a permanent tenancy must have been created by a written instrument nor are we concerned to find a lawful origin for acts which would otherwise have been unlawful. The continuance of an old tenancy is equally lawful whether the tenancy be permanent or precarious. The doctrine of lost grant when examined in the case of Angus v. Dalton (4 Q B D 162 : 6AC 750 (1881)), was found to bristle with difficulties and in any case it is necessarily based upon an arbitrary period which the law of England puts at twenty years.

" The reference to the principle of 'lost grant' is however only an incident in the judgment in Abdul Hakim's case. The cases which illustrate the facts from which, and the principles on which, an inference as to permanent tenancy can properly be made were very carefully analysed by Chakravarti, J., in a clear and highly useful statement of the law . . . . . . . . . . . But the mere circumstances that the tenant and his family have for a very longtime been allowed to continue residing in the same place without any variation in the rate of rent is a circumstance which by itself is an insufficient foundation for holding that the tenant's right was permanent in its origin.

" In Abdul Hakim's case, Chakravarti, J., as a result of his analysis of previous decisions, considered that the absence of permanent pucca buildings on the land would ordinarily be fatal to a claim for permanency. What I think he meant by this statement was that unless permanent pucca buildings existed on the land, the tenant would not as a rule be able to point to anything more than matters which can be explained by the reluctance of a landlord to eject a reason able tenant, i.e., to point to any other element showing that the tenant's long occupation at a uniform rate of rent is unequivocally referable to a permanent right.

" In my opinion it cannot be laid down that the existence of permanent structures is the only unequivocal or un ambiguous fact for the purpose of an inference in favour of the tenant. In this respect I think that the case law has broadened . somewhat since Prosanna Coomaree's case (I L R 3 Cal. 696) was decided. In Secretary of State v. Maharaja Luchmeswar Singh. Lord Hobhouse said: All they offer is some corm lecture of such an agreement founded simply on their long possession at a uniform rate of payment. If we could not find out the origin of those things, there would be strength in that argument."

As to the small variation of the rental twice, which has already been mentioned, Mr. Asir has relied on the case of Manmotha Nath Mitter and others v. Anath Bandhu Pal and others (23C WN 201) and has also argued that the very fact that the rent was varied twice, however, small the variation may be, goes to show also that the rent was not permanently fixed as claimed by the appellants. In that case it was held that it was for the tenant‑defendant to ask the Court to presume that the tenancy was permanent and to explain the variation in the rent. On this point of variation Mr. Bhattacharjee has referred to the following observation of R. C. Mitter, J. in the case of Sk. Arjedali v. Sm. Sorbasona Dassi and others (40 C W N 1479).

"In my judgment the correct principle has been laid down by Cuming and Mukherji, JJ., in a Letters Patent Appeal in Dearish v. Dwijadas Chakravarty (44 C L, J 103). where the decision of B. B. Ghose, J., was affirmed. Mr. Justice Mukherji delivered the judgment in the Letters Patent Appeal and laid down the principle in these terms

'All that is necessary to find is whether there has been a change in the rent or the rate of rent. Of course the change must be a real one in the sense that it was intended to be a change but that does not mean that is must be a substantial amount. The relevant question is whether there has been really a change or variation and not whether the same was in respect of a substantial amount ; and the amount of the variation is only one of the elements to be considered in determining the question. "

It has already been indicated that the settlement in question is a Bemeadi settlement of which the origin is known and in addition to that we find in the Robakary (Exh. 2) the following clauses

" Paragraph No. 3. The proposed Mahal belongs to the Sarkar by right of purchase and in it there is no claim of any Mourashi by 'any cultivating tenant. Finis.

Paragraph No. 4. In the above‑mentioned Mahals there is no Lakheraj. Finis.

Paragraph No. 5. The aforesaid Mahal being the purchased one of the Sarkar‑nobody else save and except the Sarkar Bahadur, has any Maliki (proprietory) interest in the same.

Paragraph No. 6. In this Mahal with the consent of the lessees and without charging any cost for the Sherista, Bemeadi leases (leases not limited to any period) on the basis of separate pattas have been granted. Especially as the lessees will reside there, it is not necessary to charge any Sherista costs for realisations. Finis"

In Exh. 5 (Patta dated the 14th Baisak 1252 B.S.‑23rd April, 1845) it is also mentioned : "And you must not grow in the homestead any paddy, sugarcane, Mustard oil plant or any other crop, or trees, bamboo clumps or any other similar plants by which the place becomes jungly. You shall live in the said homestead keeping it neat and clean." The law relating to permanent tenure has been very succinctly laid down by Rankin, C. J., in the case of Kamal Kumar Dutta and another v. Nanda Lal Duley, and we respectfully agree with the view taken by their Lordships. There is no doubt that the initial onus is on the tenant defendant (in this case the appellant) to prove that his tenancy is a permanent one and that it has a permanently fixed rent. Simply because the tenant has been in possession for a very long period and has paid the same rate of rent and has built super‑structures on the plots in question with the knowledge of the landlord, they by themselves will not make the tenure permanent and the rent thereof invariable. In the absence of any contract which precludes him from enhancing the rent, a landlord has a right to increase or decrease the rental of the tenure held by his tenant. It has also been rightly observed in more than one case that it is mainly by reference to the terms and conditions of the kabuliyat or patta, if there is one, that the Court should determine whether the tenure is perpetual and the rent is invariable. It is true that in this case the words " Diemi Settlement" have been mentioned in the Robakary (Exh. 2), as pointed out by Mr. Bhattacharjee, but that is not every thing for in the patta it is definitely stated that the tenure is Bemeadi ; and, as pointed out by Mr. Asir, it is also stated in the Robakary (Exh. 2) at page 103, Part II of the Paper Book that the settlement was by separate pattas without fixing any period. In this connection we may mention that in the case of Fazal Sheikh v. Karamuddin Shaikh and others (6 C W N 916), it was held that even the term " Kaimi " does not import fixity of rent. The word " Diemi " according to Wilson's Glossary is : " Relating to what is perpetual ; the perpetual settlement of the revenue, and so conveys the notion of fixity of rent " ; and Mr. Wilson refers to the case of Payari Mohon v. Siddique Ahmed (A I R1928 Cal. 531). Of course, if these words occurred in the patta or the kabuliyat and it was supported by other elements of permanent tenure things might have been different but that is not the case here. So we have to examine whether the term " Bemeadi " means in this case perpetual tenure or otherwise. In this connection. Mr. Asir has placed before us the case of Raja danaki Math Roy and others v. Dina Nath Kundu (since deceased) and others (54 C L J 412). In this case their Lordships of the Privy Council observed as follows

" Arguments were advanced in the Courts below based upon what each side claimed to be the true meaning of this word. Etymologically it would appear to indicate absence of a term from which one side claimed that its presence indicated that the lease was interminable or perpetual, while the other side claimed that all that was indicated was that the lease was for no fixed term, but was determinable upon notice in the usual way.

" In their Lordships' opinion the question cannot be resolved by reference only to the use and meaning of the word ' Bemeadi ', but should be determined after consideration of all the provisions of the kabuliyat, by which the rights of the parties are defined."

Mr. Asir has also drawn our attention to Article 35 of the Indian Stamp Act which makes a distinction between a lease for indefinite term or period and that of a perpetual lease. The relevant portion of Article 35 of the Stamp Act runs thus " 35: Lease, including an under‑lease or sub‑lease and any agreement to let or sub‑let :‑

(iv) Where the lease does The same duty as a con not purport to be for any veyance (No. 23) for a con definite term. sideration equal to the amount or value of the average annual rent which would be paid or delivered for the first ten years if the lease continued so long. (v) Where the lease pur‑ The same duty as a convey ports to be in perpetuity. ance (No. 23) for a considera tion equal to one‑fifth of the whole amount of rents which would be paid or delivered' in respect of the first fifty years of the lease."

In connection with the presumption arising out of the entry in the district Settlement Survey record‑of‑rights which was finally published on the 31st July 1916, and on which the Subordinate Judge has relied. Mr. Bhattacharjee argues that the entry in the record‑of‑rights cannot have any retrospective effect as subsection (1) of section 101 of the Bengal Tenancy Act, including "all lands" was amended in 1928, Mr. Asir rightly points out that section 1038 of the Bengal Tenancy Act, is only a law of evidence and, therefore, a law of proce dure and, as such, the amendment of subsection (1) of section 101 of the Bengal Tenancy Act in 1928, must have retrospective effect. Arising out of this point it has also been urged by Mr. Bhattacharjee that there is no presumption under section 1038 of the Bengal Tenancy Act in case of a non -agricultural holding like the present one. In support of this contention he has relied on the case of Raja Sasi Kanta Acharjya Bahadur v. Sandhya Moni Dasya (26 C W N 483), and Mr. Asir in answer to the contention of Mr. Bhattacharjee' has relied on the case of Rathindra Narayan Das v. Rai Gunendra Krishna Roy Bahadur (48 C W N 153). In the case of Rathindra Narayan Das v. Rai Gunendra Krishna Roy Bahadur, Biswas. J., referred to the case of Raja Sasi Kanta Acharjya Bahadur v. Sandhya Moni Dasya, cited by Mr. Bhattacharjee and observed as follows:

" In Raja Sasi Kanta Acharpya Bahadur v. Sandhya Moni Dasya, Sanderson, C. J., sitting with Chotzner, J., refused to accept the argument that the presumption of correctness under section 1038 would not apply to entries in respect of Chandina lands because such lands were not subject to the provisions of the Act. The learned judges no doubt added that the presumption could not be as weighty as would be the case if the entries were with regard to matters which could be rightly and properly included in the record of rights, but this could not weaken the effect of the decision which clearly implied that a record‑of‑rights could be validly prepared in respect of non‑agricultural as well as agricultural lands. I have not been referred to any authority in which the correctness of this view has been questioned or even doubted. On the other hand, there are at least two reported decisions in which this case has been followed Chand Mia Munshi v. Tukamia (28 C W N 516) and Fazlur Rahman Biswas v. Golam Kader Mia (30 C W N 689).

" I must consequently overrule Mr. Chakravarti's conten tion as regards the validity of the disputed entries in the record‑of‑rights, and hold that the entries were admissible in evidence and did attract the Statutory presumption under section 1038."

We may mention that Mr. Bhattacharjee raised this point in connection with the observation of the trial Court that in the entry of the above record‑of‑rights which was finally published on the 31st July 1916, it was not entered that the rent was fixed. In this connection Mr. Asir has also made a point that even according to the plaintiffs' witness No. 3 the plaintiffs had in their possession Talab‑baki papers showing Mokrarijama held by Raja Jagat Kishore, but that these were not produced and, according to this witness, these papers were at the time of his deposition lying at Muktagacha. We are unable to accept the contention of Mr. Bhattacharjee that these entries in the record‑of‑rights raise no presumption under section 1038 of the Bengal Tenancy Act in respect of the non‑agricultural holdings, and we respectfully agree with the view taken by his Lordship Biswas, J., and we also hold that there is presumption under section 103E of the Bengal Tenancy Act also in case of non‑agricultural holding.

In support of his contention that the tenure is permanent and the rent is invariable, Mr. Bhattacharjee has also referred to the terms of the documents that are executed by the other parties relating to these very lands, but although these have their evidentiary value we agree with Mr. Asir that they are not binding on the defendant.

On an examination of the terms of the patta and also the Robakary (Exh.2), the relevant terms of which we have already set out, it seems that nowhere in these documents it has been said that the tenure was a perpetual one or that the rent was permanently fixed. In our opinion the word Bemeadi " with reference to the context must mean in this case that the tenure was for an indefinite or undetermined period and the " fixed rent " means that the rent was determined by the Government at the time of the settlement and it is not a rent which was permanently fixed for all time to come. The words " Diemi Settlement " mentioned in the Robakary (Exh. 2) must also be read with reference to the letter of the Commissioner (Exh. 6) dated the 13th December 1841, for a reference is made to that letter in the said Rohdkary. We have already indicated that this letter to which reference is made, does not contain the words " Diemi Settlement ". On the other hand, it says that the settlement should be " in the manner as if it were a permanent settle ment". Much has been made of the use of these words "Diemi Settlement" in the Robakary (Exh. 2). But if we read all f he terms of the Robakary (Exh. 2) together with those of the patta particularly the restrictive terms of the lease in (Exh.5) to the effect that the tenant was to keep his homestead land neat and clean, and was not to grow in the said homestead certain kinds of crops, etc., and also the entry in the record‑of‑rights of 1916 and other evidence it will go to show that the tenancy was not permanent nor was the rent permanently fixed, so we accept the argument of Mr. Asir; and on the terms of the patta and other evidence and for the reason stated above we hold that the tenure was not permanent nor was the rent perpetually fixed. We further hold that even the finding in the previous Suit No: 41 of 1894 that the tenure was permanent has also been, successfully displaced by the evidence placed before us. We may, however, mention that we can hardly call the said finding in the previous suit based on evidence as the Judge did not allow this issue to be agitated as he wrongly held the view that it was barred by the principle of res‑judicata.

The next point argued by Mr. Bhattacharjee is that the learned Subordinate Judge erred in holding that the Bengal Non‑Agricultural Lands Assessment Act, 1936, applies to the present case. On this point his argument is two‑fold:

One branch of his argument is that this Act applies only to temporary settled estates and does not apply to permanently settled subsisting tenancies or tenures. Mr. Bhattacharjee has taken us through the preamble of sections 3 5, 7, (b) (v) and 8 (1) of the Bengal Non‑Agricultural Lands Assessment Act, 1936 ; and Mr. Bhattacharjee has laid stress on " estate, tenure or part thereof of which a settlement of land‑revenue is being or is about to me‑ made" in the above section 3. Mr. Asir contends that the Act does apply to the temporary settled estates as well as to the permanently settled estates ; and he relies not only on the preamble but also on sub sections (1) and (2) of section 2 of the Bengal Non‑Agricul tural ,ands Assessment Act, 1936, which run as follows:

"2. In this Act, unless there is anything repugnant in the subject or context :

(1) 'estate' means land included under one entry in any of the general registers of revenue‑paying lands and revenue free lands prepared and maintained under the law for the time being in force by the Collector and includes a part of, and any accretion to, an estate ;

(2) 'estate which belongs to (the Crown)' includes (a) all lands in which (the Crown) have proprietory rights ; . . ."

It is conceded by both the learned Advocates for the parties that the Act does not apply to a permanently settled estate under Regulation VIII of 1793 ; but the present case is not one of that category. But Mr. Bhattacharjee has contended that nevertheless the Act cannot apply to the subsisting tenancy which is a permanent tenure with‑ an invariable rate of rent of which the rent is not being settled as mentioned in section 3 of the Act and, therefore according to the terms of the patta and kabuliyat it should be held that although it is a subordinate interest‑as a subordinate interest can be a perpetual one with a permanent rate of rent‑the Act has no application. We have already held in respect of the other points mentioned above, that the tenure in question is not a permanent one nor is the rent of this tenure permanently fixed. Therefore, we accept the contention of Mr. Asir that the Act does apply to the present case.

Mr. Bhattacharjee has also argued that the learned Subordinate judge erred in holding that the disputed plots were not in possession of the plaintiffs. It seems that in the original plaint, only Dags Nos., 20 and 21 were included and a Commissioner was appointed on the application of the plaintiffs which was filed on the 6th March, 1945. On the 17th March 1945, the plaintiffs filed another petition for directing the defendant to produce a map prepared under the orders of the Collector according to the Robakary (Exh. 2), dated the 26th May 1945. As the boundaries of the disputed plots were shown in this map, the plaintiffs also prayed to the Court that the Commissioner should also be directed, to relay boundaries in the suit but this map, it is pointed out, was not produced before the Commissioner and the said Commissioner submitted his report on the 9th June 1945. His report among other things, is to the following effect :

The Station lines 1‑21‑41‑39, etc., to 35 represent the present western boundary of the Government khas land, which has been variously described as Circuit House, Dak Bunglow, Civil Court House,. etc. It appears that the northern portion of the Government Khas land, marked Plot No. 20 in the map is the site of the Dak Bunglow formerly known as the Civil Court House. C.S. Dags 22, 23, 24, 25,26 and lands to their south were known as the Circuit House compound. The two together are now described as Government Khas land in document No. 9, dated 1894 stated above where the eastern boundary is stated to be Government Khas land whereon stands Mr. Kerr Stephen's building. The Government Khas land would include both Dak Bunglow and the Circuit House lands. There are two P.W. pillars at Station 'No. 1 and 37 of the case map . . . . On consideration of the above documents I have come to the conclusion that R. S. Dags 20 and 21 of the Map of 1941‑44 are included within the plaintiff's tenancy .

After this report was submitted, on the 4th August 1945, the plaintiffs appellants applied for amendment of the plaint in order to include also the eastern portion of Dag No. 5 and Dags Nos. 23, 24, 25 and 26. This amendment was allowed and the defendant was also allowed to put in additional written statement which they did on the 15th September 1945. On the same date the defendant filed a map of 1891 and prayed to the Court that it might be relayed by the Commissioner and superimposed on the map already prepared by them, that is, the‑ case map, on scale of 64" inches to a mile. This prayer was opposed by the plaintiffs. But nevertheless the prayer of the defendant respondent was allowed and the Commissioner was directed to relay this may and superimpose it on the case map already prepared by them, and submit a report by the 25th September, 1945. It appears from the further report of the Commissioner, dated the 24th September 1945, that he did not relay the map of 1891 but only superimposed it on the case map and reported the result thereof to the Court. It is stated in the said report: " I have carefully examined the map. I find it to have been prepared on a scale of 16" = 1 mile the usual thakbast scale: I therefore enlarged the map, only the re levant portion of it, on a scale of 64" = 1 mile and then superimpose the same on the case map." In his diary work, which was also filed with this report, he states under the date of 17th September, 1945: "This day I examine the map filed by the defendant. It has no scale noted in it. On examination it is found that map was prepared on a scale of 16" = 1 mile. I enlarged the map.. " Our attention has been drawn to certain features of this map of 18)1 which has been marked Exh. A and it is urged by Mr. Bhattacharjee that we should not place any reliance on this map., Mr. Bhattacharjee points out in the first place that no scale is given in this map nor it is stated in the said map under whose order it was prepared, and that although it was superimposed, it was not relayed as directed by the Court. In the second place, it is pointed out that even if this map were in existence from 1891, as it is claimed to be, it is curious that this should not have been filed in the previous suit (Title Suit No. 41 of 1894) filed by the Govern ment, although in that very suit in paragraph 3 of the written statement the area and boundary of these plots were dis puted by the predecessor‑in‑interest of the present plaintiffs. Objection is also taken that this map has not been properly proved or admitted into evidence although the learned Subor dinate Judge has observed that its custody was proved. Mr. Asir concedes that there is no scale given in Exh. A nor the map was relayed as directed by the Court nor any local investigation was held at the time the said Exh. A was superimposed and, therefore, it would not be proper to rely on Exh. A. But Mr. Asir contends that even without relying on Exh. A the defendant on the other evidence on record has succeeded in proving that the plaintiffs were not in possession as claimed by them. It is pointed out by Mr. Bhattacharjee that except the entry in the record‑of- rights no witness of the defendant has stated that the plaintiffs were not in possession; that on the other hand, on the showing of the defendant themselves according to Exhs. 14 and 14 (a) the defendants were the lessees under the plaintiffs in respect of the same plots till 1921 and by subsequent leases till 1936; and that, therefore, it was not open to the defendants to‑ deny the possession of the plaintiffs as the defendants respondents were inducted into possession by the plaintiffs Appellants as their lessors by the terms of the lease. In other words, it is urged that the defendants were estopped from raising the question of possession against the appellants in the present case. Mr. Asir rightly points out that although it is true that the defendants were in possession as lessees under the plaintiffs till 1936, there is nothing to show that after 1936 the defendants continued to remain in pos session of the plots in suit. It is admitted by the learned Advocates of both the appellants and the respondents before us that the lease between the plaintiffs appellants and the defendants respondents continued only till 1936 and that at the time of the institution of the suit no lease or possession there of subsisted. If that is so, and it must be as represented by the learned Advocates, there was no relationship of landlords .and tenants between the plaintiffs and the defen dants on the date of the institution of the suit and, therefore, in our opinion, the plaintiffs are entitled to raise ‑the question of possession in this suit.

Now, let us examine whether the plaintiffs were actually in possession. We must mention at the outset that although objections to the Commissioner's report were taken by the parties concerned both after he had filed his first report and also after filing the second report, on the date the objections were filed the trial judge recorded an order that he would' consider and dispose of them at the time of the trial. But it will appear from the 'records that the learned Subordinate Judge has not disposed of them at all and has not said a word about them in his judgment.

It seems that there was a map or plan according to Exh. 2 (Robakary) as it is mentioned therein in item No. 2 of paragraph 7 that a new kabuliyat was given according to survey anal plan; but that was not produced before the Com missioner. The difficulty has been as to the eastern boundary of the disputed dags. In the first report of the Commissioner, dated the 9th June 1945, the eastern boundary is given as Circuit House drain in respect of Taluk No. 1; and in respect of Taluk No. 2 the eastern boundary is given as the Civil Court House drain. It is also stated in respect of the latter. " The eastern boundary is said to be the western drain of the Civil Court Kachary, i.e., 19. This Civil Court Kachary is the Dak Bunglow shown in the Map of 1910‑11." It is also set out by the Commissioner in his report: "East, Government khas land, in which stands Mr. Kerr Stephen's building." In Exh. 14 (Registered deed of lease granted by Jagat Kishore Acbaryya Choudhury, to the Secretary of State for India in Council, dated the 23rd January, 1908), the eastern boundary given is the western boundary line of the Dak Bunglow and the same boundary is given in Exh. 14 (a). But it may be mentioned that the area given in these two leases is "more or less 7 pooras"; and according to paragraph No. 2 in Exh. 2 (Robakary) one roora is equal to 3 bighas 1 ganda 3 karas and this appears at page 105, Part II of the Paper‑Book. According to this standard the area covered by the two leases is several bighas in excess of that mention ed in paragraph 6 of the plaint in the suit which is 21 bighas 14 cottahs and 6 chittaks. It is conceded by Mr. Asir that the boundaries shown in the decree of the previous suit (Title Suit No. 41 of 1894), Exh. 7, are different from those been given in the plaint of the previous suit and also from those of the present suit ; that there are also discre pancies between the boundaries given in the plaint of the previous suit and those of the leases Exhs. 14 and 14 (a); and that according to the leases the plaintiffs had more lands. But Mr. Asir points out that these discrepancies may be due to some mistake in measurement. It is also conceded by Mr. Asir that if the defendants relied on Exh. A and the report thereof, the written statement of the defendants should have been amended ; and that, if Exh. A is discarded the plot No. 2 in the case map will extend upto the red line between station 16 and station 19. Mr. . Asir admits that he cannot locate the drain mentioned by the Commissioner in the boundaries in the case map ; but he guesses that if it were at all in existence, it will be somewhere in the north‑east of the violet line from nations 14 to 19. He, however, relies on the evidence of the defendants' witness No. l (Kanungo) who gave evidence as to the pillars. Mr. Bhattacharjee's comment on the evidence of this witness is that his evidence is not worth anything at all as he gave evidence at the instance of the Government Pleader and that although he speaks of the pillars, he does not say that there were pillars near the drain which is the north eastern boundary of Dag No. 22. It is pointed out that the Commissioner (P. W. 1) also in his cross‑examination stated as follows

"To the east of plot No. 19 of District Cadastral Survey map is a drain and has been in my map, as such I cannot say if it is a drain to the west of C.S. Plot 19. There is some space between the lines remaining from the north to south to the west of Plot No. 19. There is a building in the southern portion of C.S. Plot 15 which corresponds to Plot No. 25 of my case map. Stations 18 to 33 of my case map are the eastern boundary line of southern portion of Plot 22 of R. S. Map. The western boundary line of the disputed land is bounded by station lines 7 to, 8, 8 to 9, 9 to 22, 22 to 23, 24, 25 and 26 of my case map. I got pillars from station 7 to 26. Those pillars were pucca pillars. I did not remember whether I noticed the mark 'J.K.A.' on these pillars. I noticed pucca pillars marked P. W. D. in it in station 33. I did not note in my field book whether there was any pucca pillar in station line 18 to 22. I noted in my field‑book whether I saw pillars. I do not remember whether I saw any pillar in the line 18 to 33. It will not be a surprise to me if pucca pillar marked 'J.K.A.' are in the line from station line 18 to 33. There are three pillars shown on the line from station 18 to 33 in the R.S. map. I had the R.S. map with me at the time of local investigation. It did not strike me whether the pillars shown in R.S. map were in existence or not at the time of local investigation."

Mr. Asir states that he cannot find out the location of the Dak Bunglow in the case map as it is not correctly shown therein. He, however, makes a point that inasmuch as the plaintiffs appellants never challenged the settlement Dags of 1910‑11 which are in favour of the respondents, it must be presumed that the defendants were in possession as it appears from those entries. We must here mention that the Dags that are given by the Commissioner in his report and also mentioned in the judgment, are not C. S. Dags but are petty settlement Dags and that with the consent of the learned Advocates for the parties these Dags Nos. in the plaint have been amended but they have to remain uncorrected in the Commissioner's report. But it seems that although the Commissioner has mentioned the Dags as C. S. Dags, he is careful enough to mention them as "C.S. Dags Nos. 20, 21 of the map of 1941‑44"; he, however, in respect of the other Dags has not mentioned the year.

We accept the contention of Mr. Bhattacharjee that Exhibit A, the map of 1891, cannot be relied upon inasmuch as no scale is given in it nor is it mentioned under whose authority this map was prepared. Therefore, although it has been proved that it was produced from the proper custody, its' evidentiary value is practically nil. We do not agree with Mr. Asir that the Commissioner in submitting his first report exceeded the terms of reference inasmuch as he referred to the Dags other than the Dags Nos. 20 and 21 which were originally mentioned in the plaint; for the plaintiffs gave the boundaries of all the plots, including those of the added plots of the application for amendment and prayed to the Court for relaying the documents with reference to the boundaries given in the plaint,. and for giving directions to the Com missioner for relaying the original map mentioned in Exhibit 2 which was in the possession of the defendants. As this map was not produced and as Exhibit A, was superimposed on the case map, we 'cannot say that the defendants respondents placed all the materials before the Commissioner or the Court; and if the map had been produced and relayed, it might well have been proved that the plaintiffs appellants were in possession of the disputed plots. On the face of the record it further appears that the direction of the Court to relay the map of 1891, Exhibit A, was also not carried out. If it was the thakbast scale as reported by the Commissioner and was enlarged on certain scale, we do not see why it could not also be relayed. After scanning the evidence including the case map and the Com missioner's report we hold that rightly or wrongly or by mistake the defendants were in possession of the disputed plots.

The next point urged by Mr. Bhattacharjee is that the learned Subordinate Judge was wrong in holding that the present case was hit by section 42 of the Specific Relief Act. He argues that the plaintiffs appellants' case throughout has been that they were in possession of the disputed plot before it was leased out to the defendants; that they continued in possession until the lease expired in 1936; and that nothing has been shown except the entry in the record‑of‑rights that the plaintiffs appellants surrendered their lease to the Govern ment before 1936 and, therefore, were out of possession before 1936. That being so, it is urged that it is not necessary for the plaintiffs to ask either for confirmation of possession or for recovery of possession. It seems that the learned Sub ordinate judge held that the plaintiffs were not in possession and in that view of the matter held that the suit without asking for consequential relief was barred under the proviso to section 42 of the Specific Relief Act. In view of our finding as to the possession to the effect that the plaintiffs had been in possession of the disputed lands throughout, we are unable to agree with the learned Subordinate Judge that section 421 of the Specific Relief Act is a bar to the maintainability of the present suit. We hold that the suit is maintainable without as king for any consequential relief under the proviso to section 42 of the Specific Relief Act and that a pure declaratory suit of this nature does lie.

The next point taken by the learned Advocate for the appellants is that the Court below erred in holding that the suit was barred by the law of limitation as the present suit was not brought within six years from the date of entry in the district settlement record, which was finally published on the 31st July, 1916. Mr. Bhattacharjee points out that although the disputed plots were recorded in the khas khatian and khas possession of the Government in the district settlement record, these entries did not do any immediate injury to the interest of the plaintiffs and so they were not bound to file a suit and that this happened only when the entry in the record‑of rights of 1941‑44 was finally published and the annual rental of the plaintiffs' tenancy was enhanced. So it is urged that as the plaintiffs were not bound to get the entry of 1910‑11 set aside until any injury was caused to them, limitation would not run from 1910‑11 but it would run from the date of the publication of the entry in the record‑of‑rights of the petty settlement in 1940‑41 ; and that as the suit was filed on the 5th June, 1944, the defendants are well within time to seek relief for the rectification of the entry in the record‑of rights of 1941‑44, which was finally published some time between the 29th February, 1944 and the 29th March, 1944. In support of his contention Mr. Bhattacharjee has relied on the case of Rai Keshab Chandra Banerjee Bahadur; and another v. Madan Mohan Poddar and others and Ahmad Hossain Bepari and others v. Digendra Narain Sinha Roy and others arising .out of the same suit reported in 40 C W N 22. In that case it was held that "Where a suit is brought by a person for the declaration of any right of his as contemplated by the proviso to section III of the Bengal Tenancy Act, the suit is within time under Article 120 of the Limitation Act, if, brought within six years when his cause of action arose, that is to say, when any injury to his right is threatened; such suit" is not barred because as ancillary to the relief as to the injury he asks for, he also asks for a declaration that the entry in a record‑of‑rights is incorrect and the suit is brought beyond six years from the date when the record was finally published." We think, there is substance in this contention of Mr. Bhatta charjee and we hold that this suit is not barred under Article 120 of the Limitation Act.

Arising out of this question of limitation it has been brought to our notice and argued by Mr. Asir that even if the suit is not barred by the law of limitation, the claim in respect of the plots of Dags Nos. 23, 24, 25, 26 and the eastern portion of Dag No. 5 which were for the first time included in the application for amendment that was filed on the 4th August, 1945, under subsections 1, 2 and 3 (c) of section 17 of the Bengal Non‑Agricultural Lands Assessment Act, must be held to be barred as the suit was not instituted within the period of six months from the date of the certificate of the final publication of the entry in record‑of‑rights which is the 13th July, 1944. The relevant portion of section 17 of the Bengal Non Agricultural Lands Assessment Act, 1936, runs thus:

"17 (1) Any person who is aggrieved by any entry in or omission from a roll prepared in respect of lands in an estate which is held khas by the Revenue authorities under section 3 of the Regulation or in an estate which belongs to the Crown may institute a suit in the Civil Court which have jurisdiction to entertain a suit for the possession of the land to which the entry relates or in respect of which the omission was made.

"(2) Such a suit must be instituted within six months from the date of confirmation of the roll or from the date of the certificate of final publication of the record‑of‑rights, whichever is later, or, if any appeal has been presented under section 16, within three months from the date of the disposal of such appeal.

'(3) Such suit may be instituted on any of the following grounds, and on no others, namely:

"(c) that in the record‑of‑rights the land has been wrongly recorded as part of a particular estate or tenancy or wrongly omitted from the lands of an estate or tenancy ;

On the face of the above provisions it appears that the application for amendment which included these added plots, namely, Dags Nos. 23, 24, 25, 26 and the eastern portion of Dag No. 5, was made on the 4th August, 1945, and this was obviously long after six months of the certificate of the final publication of the entry in the record‑of‑rights, dated the 13th July, 1944. Although this question of special limitation has been raised here for the first time, we have heard the argu ments of the learned Advocates for the parties on this point of special limitation under section 17 of the Bengal Non‑Agricultural Lands Assessment Act of 1936, and we must give effect to this point of limitation. So, in our opinion, the relief seeking a declaration that the entry in the record‑of -rights as regards the above added plots of the application for amendment is erroneous and that they should be included in the khas khatian No. 2 of the plaintiffs as appertaining to the plaintiffs appellants' tenancy, is barred under section 17 of the said Act; but the plaintiffs appellants are not hit by these provisions of section 17 in respect of Dags Nos. 20 and 21 which were included in the original plaint filed on the 5th June 1944. So, in modification of the judgment and decree of the learned Subordinate Judge we hold that plots Nos. 20 and 21 have been erroneously recorded in the khas khatian of the respondent in the entry of the record‑of‑rights and should be included in khatian No. 2 of the plaintiffs appellants: We must however, make it clear that even in respect of these Dags Nos. 20 and 21 the plaintiffs appellants are not entitled to get any relief in the matter of assessment and are liable to be assessed under the Bengal Non‑Agricultural Lands Assess ment Act as according to the view already expressed by us the said Act applies to all the plots in suit.

The result, therefore, is that save and except the modi fication mentioned above, the appeal is dismissed.

The parties will bear their own costs

BADIUZZAMAN, J.

---‑I agree.

Appeal dismissed with modification

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