Harries, C.J.These are three appeals from a decision of Agarwala J., upholding a decree of the lower appellate Court passed in favour of the plaintiff-respondent.

2. The plaintiff-respondent is the successor-in-title of certain land to the Raja of Jharia. It was alleged that the Raja had 30 or 35 years ago settled certain homestead lands with the defendant-appellants or their predecessors-in-title, and the terms of settlement included an undertaking by the tenant to pay rent at the rates prevailing in the district from time to time. No rent had been paid, and the present suits were brought in which the plaintiff asked the Court to settle the rate of rent and for a decree for arrears of rent on such basis.

3. The defendants, on the contrary, alleged, that these were rent-free lands and that no rent was payable in respect of them. In the alternative, they alleged a title in the lands by adverse possession. They further pleaded that the suit, as framed was not maintainable. The learned Munsif dismissed the suits, but on appeal the learned Subordinate Judge reversed his decision and decreed the suits holding that the rent applicable was a rent of Rs. 6 per katha per year for certain types of land and Rs. 2 per katha for other types of land. In second appeal to this Court, Agarwala J. upheld the decision of the lower Court and dismissed the appeals.

4. It has been contended by Mr. Mazumdar on behalf of the appellants in Letters Patent Appeal No. 11 of 1940 that the decision of the learned Single Judge as to the nature of the settlement made with the defendants or their ancestors cannot be sustained. The land is recorded in the Record of Rights as belagan, and it is urged that this means that the holdings were rent-free holdings. All the Courts below have come to the conclusion that the word belagan as used in this district does not necessarily mean rent-free. It means a holding which is not paying rent, and such may be a rent-free holding, or it may be a holding for which rent may later be assessed. The Courts below have relied upon the settlement report of Mr. Gokhale, and in that report the word used for a rent-free holding is nishkar. The expression used for a holding not paying rent but which is assessable to-rent is "belagan-qabil-lagan." Mr. Gokhale gives the meaning of belagan standing alone as not paying rent. All the Courts have held that belagan in this particular district when standing alone means nothing more than not paying rent. In the view of the Courts, when such an expression appears in the Record of Rights there is no presumption that the land is either rent-free or assessable to rent.

5. It may well be that Mr. Gokhale took this to be the meaning of belagan after considering a decision of the Calcutta High Court in Keshwar Bhagat v. Sheo Prosad Lal AIR 1914 Cal. 270. I do not wish in this case to decide what belagan means generally in this province. All that I can say in this Letters Patent appeal is that the Court cannot take a different view from the Courts below having regard to the materials on the record.

6. In any event, the lower appellate Court accepted the evidence adduced on behalf of the plaintiff as to the origin and terms of the tenancy. An old servant of the Raja was called who stated the precise terms upon which these lands were let. Even if the Record of Rights had stated that these lands were rent-free, it would still be open to a Court of fact to accept the evidence as rebutting the entry in the Record of Rights.

7. The learned Subordinate Judge unhesitatingly accepted the evidence as to the nature of the tenancy, and that being so, it is immaterial what the entry in the Record of Rights really means. If it meant a rent-free holding, the entry was rebutted by the evidence which the Court accepted. In my view it is impossible to assail this judgment on the ground that the Record of Rights establishes that the settlement was of a rent-free holding.

8. It was then argued that this suit as framed was not maintainable. It was suggested that it was a suit to settle a fair and equitable rent for a holding; but as pointed out by the Courts below the suit was really one for arrears of rent and an inquiry had to be conducted to ascertain what that rent was. It appears to me that such is the real nature of the suit and it is maintainable in its present form. It was then argued that if the original settlement was not a rent-free settlement the defendants had asserted their title to hold the land rent-free for more than twelve years before this suit was brought. Whether they asserted such a right depends upon the meaning to be given to the word "belagan"; but in any event the lower appellate Court has held that neither the plaintiff nor his predecessor, in title had any knowledge of any such assertion of title. Even assuming the tenant can acquire an adverse title against his landlord by such an assertion he could only do so if his assertion was brought to the notice of his landlord. This assertion, if, indeed, it was an assertion of hostile title, was never brought to the notice of the landlord, and that being so, the defendants have not acquired a title by adverse possession.

9. It was also suggested that the tenancy which was created was one for a year or more, and us the formalities required by the Transfer of Property Act had not been complied with and the document had not been registered the lease was void. Having entered under a void lease, it was urged that time began to run at once against the landlord and that a title was acquired after possession for the statutory period. The lower appellate Court however came to the conclusion that this was really a monthly tenancy and relied upon Section 106, T.P. Act. It is impossible to say that the lower appellate Court and the learned Single Judge were wrong in coming to the conclusion that this tenancy was nothing more than a monthly tenancy.

10. It was urged that as the rate of rent had been found to be Rs. 6 per katha per year the Courts had actually found that it was an annual tenancy. A tenancy may well be a monthly tenancy though the rent may be mentioned as so much per year. There is ample authority for this proposition without referring to the cases in detail.

11. It was also suggested that if there was a tenancy and a promise to pay rent at the prevailing rate that meant the rate actually prevailing at the date of the tenancy. The witness who gave evidence as to the tenancy was cross-examined about the precise terms of the agreement, and he made it clear that the agreement was not to pay the rent then prevailing but to pay a fluctuating rent. The Courts have held that such was the agreement, and that is a finding of fact which cannot be disturbed in second appeal or in this Letters Patent appeal. It was further, urged that the tenancy, if there was one, was a tenancy-at-will and that as the original tenant had died his successor began to acquire title by adverse possession from the moment the original tenant had died.

12. The Courts however have held that this was a monthly tenancy, and that as long as the tenancy existed no question of limitation can arise. It appears to me that we are precluded in this case from interfering with the decision of the Court below by reason of the findings of fact.

13. They practically conclude the matter, and that being so, Letters Patent Appeal No. 11 of 1940 fails and must be dismissed with costs. No one has appeared in Letters Patent Appeals Nos. 20 and 21 of 1940, but as the points are the same these appeals also fail and must be dismissed with costs, but there will be no hearing fee for these two appeals.

Fazl Ali J.

I agree.