JUDGMENT
1. In this case the District Judge appears to have proceeded upon a supposition that the Judicial Committee in the case of Jagdeo Narain Singh v. Baldeo Singh 71 Ind. Cas 984 : A.I.R. 1922 P. C. 272 : 491. A. 399 : 2 Pat. 88 : 3 P.L.T. 605 : 36 C.L.J.49 W. 32 M.L.T. 1 : (1923) M.W.N. 361 : 27 C.W.N. 925 : 45 M. L.J. 460 (P. C.) said something contrary to what was laid down in the case of Hurryhur Mookhopddya v. Madhub Chunder 14 M.I.A. 152 : 2 Suth. P.C.J. 484 : 2 Sar. 713 : 20 W.K. 459 : 8 B.L.R. 560. Considerable argument has been addressed to us either in support of the District Judge’s view or against it, and reference had been made to a number of cases amongst which may be mentioned the following: Sashi Bhusan Hazra v. Abdulla ; Chattra Nath v. Babar Ali : Kiran Chandra v. Srinath Chakravarti 100 Ind. Cas. 453 : A.I.R. 1927 Oal. 2l0 : 13 C. W.N. 135 : Makhan Lal v. Rup Chand 126 Ind. Cas. 128; A.I.R. 1930 Cal. 164 : 33 C.W.N. 1168 : 51 C.L.J. 41 : Ind. Rul. (1930) Cal. 672 and Abdul Bari v. Hrishikesh Mittra 122 Ind. Cas. 552 : A.I.R. 1929 Cal. 459 : 49 C. L.J.. 546 : Ind. Rul. (1930) Cal. 248 We have perused these decisions with care, but we consider it unnecessary to discuss them here because, for reasons which we shall presently give, we are clearly of opinion that there is no real foundation for such a supposition, and we would respectfully dissent from such of the aforesaid decisions as may lend any colour to it.
2. In Hurryhur Mookhopadhya’s case 14 M.I.A. 152 : 2 Suth. P.C.J. 484 : 2 Sar. 713 : 20 W.K. 459 : 8 B.L.R. 560 their Lordships referred to the provisions of Regulation XIX of 1793 and pointed out that it divided lakheraj tenures into two classes, that is to say, those created by grants made previous to 12th August, 1793 and these created by grants made between that date and 1st December, 1790 : that the former were, subject to certain conditions declared valid, and the latter with certain exceptions and subject to certain conditions, were declared invalid and as such reusable and subject to future assessment; and that the latter were sub-divided into classes, vis., those which comprised lands not exceeding 100 bighas, and those which comprised lands in excess of that quantity. After dealing with the machinerioff provided for by the Regulations and me later enactments and also the question of limitation that might arise, their Lordships dealt with the question of burden of proof. Their Lordships referred to the decision of a Full Bench of this Court in the case of Parbati Charan v. Raj Krishna Beng. L.R. Sup. Vol. 162 at p. 165 (F. B.) at page 165Page of Beng. L.R. [Ed.], where it was held that in any suit which the plaintiff might bring to assess or resume invalid lakheraj on the allegation that it came into existence since 1st December, 1790, it lay upon the plaintiff to prove that the case was one falling within Section 10, Regulation XIX of 1793. This Court had said:
He must prove his allegation that the land held IV the defendant, and which he claims to be lakheraj, is part of the mal land of the plaintiff. If the prove that fact, and show that it was assessed to me public revenue at the time of the decennial settlement it may be presumed that the right under which the defendant claims to hold as lakheraj commenced subsequently to 1st December, 1790, unless the defendant give satisfactory evidence to the contrary.
3. Their Lordships then observed :
Again, their Lordships think that no just exception can be taken to the ruling of the High Court touching the burden of proof which in such cases the plaintiff has to support. If this class of case is taken out of the special and exceptional legislation concerning resumption suits it follows that it lies upon the plaintiff to prove a prima facile case. His case is that his maw and has since 1790 been converted into lakheraj. He is surely bound to give some evidence that the land was once mal. The High Court in their judgment already considered, has not laid down that he must do this in any particular way. He may do it by proving payment of rent at some time since 1780, or by documentary or other proof that the land in question formed part of the mal assets of the estate at the decennial settlement. His prima facie case once proved the burden of proof is shifted on the defendant, who must make out that his tenure existed before December, 1790.
4. Their Lordships then referred to an admission which the defendant had made that the lands in question, with the exception of a small quantity no longer claimed, were within the appellants estate, and observed:
But such an admission is obviously not sufficient to meet the burden of proof thrown upon the plaintiff. It was at most an admission that the lands were within the ambit of the estate not that they had ever been mal lands. In fact the defendant strenuously asserted the contrary.
5. In Hurryhur Mookhopadhya’s case 14 M.I.A. 152 : 2 Suth. P.C.J. 484 : 2 Sar. 713 : 20 W.K. 459 : 8 B.L.R. 560 the suit was on the face of it Drought under Section 32, Regulation 11 of 1819, though to enforce a claim unders. 10, Regulation XIX of 1793, and was instituted after a preliminary proceeding under Section 28, Act X of 1859, and tin defendants undertook to prove that their tenures existed before December, 17U0. The case, therefore, laid down in the clearest possible words that the plaintiff in thus a case will have to make out a prima facie case: 71 Ind. Cas 984 : A.I.R. 1922 P. C. 272 : 491. A. 399 : 2 Pat. 88 : 3 P.L.T. 605 : 36 C.L.J.49 W. 32 M.L.T. 1 : (1923) M.W.N. 361 : 27 C.W.N. 925 : 45 M. L.J. 460 (P. C.) of payment of rent since 1790 : or 14 M.I.A. 152 : 2 Suth. P.C.J. 484 : 2 Sar. 713 : 20 W.K. 459 : 8 B.L.R. 560 that the land formed part of the mal assets of the estate at the decennial settlement; if he does so the burden of proof shifts on to the defendant to prove that his tenure existed before 1790 : and that the mere fast that the land lay within the geographical limits of the plaintiffs’ revenue paying mauza is not sufficient.
6. In Jagdeo’s case 71 Ind. Cas 984 : A.I.R. 1922 P. C. 272 : 491. A. 399 : 2 Pat. 88 : 3 P.L.T. 605 : 36 C.L.J.49 W. 32 M.L.T. 1 : (1923) M.W.N. 361 : 27 C.W.N. 925 : 45 M. L.J. 460 (P. C.) their Lordships, after referring to the presumption which arose in favour of the defendants upon the entry in the Record of Rights, hava observed:
Considerable stress has been laid on the presumption on behalf of the respondents. Once, however, the landlord has proved that the land which is sought to be held rent-free lies within his regularly assessed estate or mahal, the onus is shifted. In the present case the lands is dispute lie within the ambit of the estate which belongs to the plaintiffs and the pro forma defendants and for which they pay the revenue assessed on the mauza. In these circumstances it lies upon those who claim to hold the lands free of the obligation to pay rent to show by satisfactory evidence that they have been relieved of this obligation either by contract or by some old grant recognized by Government.
7. The confusion arises only if the distinction implied by the words “estate” and “mahal” on the one hand and the word “mauza” on the other, used in this passage, is not kept in view, and if it is overlooked that the words “estate” and “mahal” used in Jagdeo’s case 71 Ind. Cas 984 : A.I.R. 1922 P. C. 272 : 491. A. 399 : 2 Pat. 88 : 3 P.L.T. 605 : 36 C.L.J.49 W. 32 M.L.T. 1 : (1923) M.W.N. 361 : 27 C.W.N. 925 : 45 M. L.J. 460 (P. C.) do not bear the same meaning as the same word bears in Hurryhur Mookhopadhya’s case 14 M.I.A. 152 : 2 Suth. P.C.J. 484 : 2 Sar. 713 : 20 W.K. 459 : 8 B.L.R. 560. In Jagdeo’s case 71 Ind. Cas 984 : A.I.R. 1922 P. C. 272 : 491. A. 399 : 2 Pat. 88 : 3 P.L.T. 605 : 36 C.L.J.49 W. 32 M.L.T. 1 : (1923) M.W.N. 361 : 27 C.W.N. 925 : 45 M. L.J. 460 (P. C.) their Lordsbips had previous to this passage, considered various proceedings including a proceeding under the Land Registration Act, VII of 1876, the preamble whereof their Lordships quoted in their judgment and their Lordships relied on the fact that the defendants’ application for registration of their names in respect of the lands had been refused. From all these their Lordships came to the conclusion that the lands lay within the plaintiffs’ regularly assessed estate or mahal. There is no reason to suppose that their Lordships were not using the word “estate” in the sense in which it has been defined in that Act; indeed the distinction intended is manifest from the next sentence where the expressions used are “ambit of the estate” end for which they pay the revenue assessed on the mauza.” In the said Act “estate” is de need as consisting of revenue paying lands or revenue-free lands while “mauza” means an area: see Section 3(2). Their Lordships, therefore, found that the plaintiffs had succeeded in proving that the land formed part of a revenue-paying estate or mahal, and on that finding they held that the defendants claimed to hold an intermediate tenure and so they have to prove the grant in respect of it on the authority of the decision in Prohlad Sen v. Doorga Pershad 12 M.I.A. 285 12 W.R. 6 : 2 B. L.R. 111 : 2 Sar. 429 (P.C.).
8. In the case before us the Assistant Settlement Officer held that it was proved that the lands lay within the geographical ambit of the plaintiffs’ towzi, but that he hid failed to show that they had been assessed to revenue, The District Judge holding, upon the view that he took Jagdeo’s case (1 that it was enough for the plaintiff to show that the lands fell within the geographical ambit of his zemindari, has remanded the case for assessment of fair and equitable rent.
9. The plaintiffs, as respondents, have produced before us the General Register of revenue-pajing lands in respect of his towzi kept under Section 4, Land Registration Act, VII of 1876, and the landlord’s portion of the settlement khatian in respect of the lands in suit For the admission of these documents, as evidence, there can be no reasonable objection. On these further materials which we now order to be marked as documents exhibited on behalf of the plaintiff, there is not the least doubt that the lands in suit are revenue-paying. A reference to the preamble to the Act and its different provisions leave no room for doubt that registers are prepared and kept under the Act for showing revenue-paying and revenue-free lands separately and when the settlement khatian enables us to connect the lands in suit with the lands shown in the General Register we think we must hold that the plaintiff has succeeded in discharging the onus.
10. The result is that the order of the District Judge remanding the case to the Assistant Settlement Officer must be upheld, though on a ground different from what he has given.
11. The defendant, as appellant, has contended that upon a document which he has produced, a question of limitation arises. We are unable to deal with the question for want of materials. In view of the fact that the plaintiff-respondent has succeeded before us on production of additional evidence, it is only fair to the appellant that he should have an opportunity to raise the question of limitation before the trial Court now. If the objection is taken it will be entertained and the parties being allowed to adduce evidence on it the case will be tried out.
12. There will be no order for costs in this appeal.