BABOO TUNDAN SING Vs. MITRAJIT SING AND ORS

JUDGEMENT

(1.) This was a suit for enhancement of rent on 87 bigas 10 katas of land from the year 1275, after notice. The defendant pleaded that the land had been in the possession of himself and his predecessors from generation to generation at a uniform rate, and that be was entitled therefore to the presumption arising under section 4 of Act X of 1859; he also objected to the grounds of enhancement as stated in the notice and likewise to the amount of land which the plaintiff stated he was possessed of. His allegation was that he held 2 bigas 10 katas less than was stated by the plaintiff. The first Court considered that there was no presumption arising in favour of the plaintiff; that a variation in the rate of rent was proved, and that there was no evidence that the defendant held below the rates prevailing in adjacent lands possessing similar advantages, but for the reasons given by him the Munsiff gave the plaintiff a decree at the rate of 3 rupees per biga. This decision dissatisfied both parties, and two appeals were preferred to the Judge, the result of which was that the plaintiff got a decree for enhancement at the rate of 7 rupees per biga, the Judge holding that the patta by its terms showed that there had been a variation in the rate of rent subsequent to the decennial settlement, and that no presumption arose under section 4 of Act X of 1859.

(2.) The only point which it is necessary for us to notice in special appeal is the one arising under section 4 of Act X, 1859. The special appellant contends that the wording of his written statement sufficiently shows that he claimed the whole of the lands from the date of the permanent settlement especially when in that statement he made a special reference to, and claimed the benefit of section 4, of Act X of 1859. It has been ruled in several decisions of this Court, that where a ryot pleads that be and his family have held certain lands from generation to generation, and on the strength of that holding claims the benefit of the presumption arising under section 4 of Act X of 1859, that he should be supposed to have dated his claim from the date of the permanent settlement; but that where a tenant fixed Borne particular date as the one from which his tenancy commenced, no matter how remote that date might be, if subsequent to the permanent settlement, he was no longer entitled to claim the benefit of the presumption arising under section 4.

(3.) In this case it is quite clear that the defendant did claim to be entitled to the presumption that he held from the date of the permanent settlement, and if he can prove that he has paid a uniform rate of rent for 20 years before the institution of the suit, he is entitled to that presumption. It has been argued on the other side that the wording of the patta itself shows that there was a variation in the rate of rent; in the year 1249, F.S. We have had this patta read to us, and it does not appear that there was any such variation as stated by the plaintiff. The reason for executing this patta was that before the year 1249, the tenant in possession had been paying rent in kind, and the patta was to make arrangements for the payment, in future, of the rent in cash, and the deed states that a rent of 2 rupees per biga will for the future be taken in lieu of the rent in kind.