Mahendra Nath Sikhar vs Bhabendra Chandra Ray and Others

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

The learned Subordinate Judge has presumed the existence of a lost grant. It is only in case of long possession under the claim of a definite right that the question of presumption of a lost grant arises.

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

It is only in case of long possession under the claim of a definite right that the question of presumption of the lost grant arises.

In the present case the learned Judge in the Court below has made this statement:

"Now, in this particular case there was no definite claim of this right at all," and that in my judgment concludes the whole case. Apart from the other question it is not suggested that the learned Judge has misdirected himself on any question of law. No other point arises in this case. The appeals fail and must be dismissed with costs.