The principle of lost grant is a presumption which arises in cases of immemorial user. It has its origin from the long possession and exercise of right by user of an easement with the acquiescence of the owner that there must have been originally a grant to the claimant which had been lost.

The presumption of lost grant was extended in favour of possessor of land for a considerably long period when such user is found to be in open assertion of title, exclusive and uninterrupted. However, when the use is explainable, the presumption cannot be called in aid.

A constitution Bench of Supreme Court explained the principle in Monohar Das Mohanta Vs. Charu Chandra Pal and Ors. (A.I.R. 1955 S.C. 228) thus,

“The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost.

It was a presumption made for securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a ‘presumptio juris et de jure’. A presumptio juris et de jure, means an irrebuttable presumption, is one which the law will not suffer to be rebutted by any counter-evidence, but establishes as conclusive; whereas a presumption juris tantum is one which holds good in the absence of evidence to the contrary, but may be rebutted. [Juris et de jure – Of law and of right] and the Courts were not found to raise it, if the facts in evidence went against it.”

“It cannot be the duty of a judge to presume a grant of the non-existence of which he is convinced” observed Farwell, J. in – ‘Attorney- General Vs. Simpson’, 1901-2 Ch.671 at p.698 (A).”

In that case the possession of the defendant was claimed to be for over 200 years but there was no finding on the length of possession. On the ground, inter alia, that the land was part of Mal lands (assessed land) within the zamindari, it was held that there was no scope for applying presumption of lost grant. In the case on hand the appellant traces his possession from 1954 under an unregistered perpetual lease from the erstwhile Inamdar (Maqtedar). Therefore, the presumption of lost grant will not be available to the appellant.