SURPAT SINHA AND ORS Vs. PRATAP MANDAL

JUDGEMENT

(1.) This is the landlord s appeal in an action brought by the tenant under Section 104-H, Bihar Tenancy Act. The record of rights was finally published on 27th December 1929, and recorded the tenant as istemrari lekenmukarrari nehi. It is against that record that the suit was brought as I have already indicated. The only question in the appeal is whether the tenant was entitled to the presumption arising by reason of Section 50 of the Act, that is to say, whether it should be presumed in this case that as the tenant was holding at a rent which had not been changed during the 20 years immediately before the institution of the suit, he had held at that rent since the Permanent Settlement, therefore the rent was not liable to enhancement. It is contended on behalf of the tenant-respondent that he is entitled to that presumption in spite of Section 115 of the Act. The words of that section I propose to read; they are:

(2.) Had it not been for a number of decisions (one only however directly in point) I should not have the slightest doubt as to what that section means and its proper construction. It seems to me plain that when the record is made, or to use the words of the section when the particulars have been recorded (and they have been recorded in this case) from the time of that record, the presumption under Section 50 of the Act shall not apply. The opposite view is best expressed, by quoting the words of Mookerjee, J., in the decision in Prasanna Kumar Sen v. Durga Charan Chakravarti AIR 1922 Cal 146. In referring to the contention between the parties Mookerjee, J. said:

(3.) During the course of the argument in that case reference was made to Pirthi Chand Lal v. Basarat Ali (1910) 37 Cal 30. But the point which is before me was not expressly decided in that case; indeed I might say, that the learned Judges definitely left that matter open. They made this statement: