GIRISH CHANDRA DUTT Vs. GIRISH CHANDRA MALI

JUDGEMENT

(1.) This is an appeal by the plaintiffs and arises out of a suit in ejectment. The plaintiffs case is that the defendants are under-raiyats and that the notice under Section 49, Bengal Tenancy Act had been served on them and that as in spite of this notice they did not vacate the land the present suit had to be instituted. The defence to the suit falls under two heads, namely, (1) that the plaintiffs are not proprietors in respect of this land and (2) that the defendants have acquired a right of occupancy by custom and as such are not liable to be ejected. The first defence did not prevail with the Court of first instance and with regard to the other part of the defence it was held that the defendants had not acquired a right of occupancy by custom and were liable to ejectment. The result was that the suit was decreed with costs, the plaintiffs raiyati right in the disputed land was declared and it was directed that the plaintiffs do recover khas possession thereof by evicting these defendants.

(2.) Against this decree the defendants preferred an appeal to the Court of the Additional District Judge of Tipperah who has reversed the decision of the Subordinate Judge and has dismissed the suit. With regard to the first head of the defence the learned District Judge is in agreement with the finding of the first Court and he has come to the conclusion that the defendants are not en- titled to question the plaintiff's title to be their landlords in respect of the raiyati holding to which the plaintiffs lay claim. With regard to the second head of defence he has come to a directly opposite conclusion to that of the Subordinate Judge who tried the suit in the first instance.

(3.) A second appeal has been taken to this Court by the plaintiffs and the main argument addressed to us has been directed to a criticizm of the finding of the District Judge that the plaintiffs had failed to rebut the presumption from the entry in the Record-of-Rights that the defendants had acquired a right of occupancy by custom. The argument on this part of the case is put in this way. It is said that there were no materials before the settlement officer which could justify his record to the effect that the defendants had acquired a right of occupancy by custom. It is also stated that even if the presumption arises from the entry in the Record-of-Rights that presumption has been rebutted by a . subsequent decision inter partes in a suit framed in accordance with the provisions of Section 66, Bengal Tenancy Act, under which a decree was passed for ejectment on failure of the defendants to pay the rent decree within a certain time and it is argued that that decree is conclusive for the purpose of showing that the defendants have got no right of occupancy in the disputed land and that in any event it is said that that decree is sufficient evidence to rebut the presumption arising from the entry in the Record-of-Rights. It is further argued that no presumption arises under S.103, Bengal Tenancy Act, in respect of the entry recording the acquisition of the right of occupancy by custom as it was within the competence of the settlement officer to record this incident of the holding under the provisions of Section 102, Bengal Tenancy Act. It is said that under Clause (b) of the said section all that a settlement officer is required to record is as to the class or classes to which tenant belongs, namely, as to whether he is a tenure holder or a raiyat holding at fixed rates or a settled raiyat or on occupancy raiyat, or a non-occupancy raiyat or an under-raiyat.