AKTOWLI Vs. TARAK NATH GHOSE

JUDGEMENT

(1.) This is an appeal on behalf of the tenants defendants in a proceeding under Section 105 of the Bengal Tenancy Act. After the final publication of the Record of Rights, in which the tenants were entered as occupancy-raiyats, the plaintiff landlord applied under Section 105 for settlement of fair and equitable rents. The defendants resisted the claim principally on the ground that they held at fixed-rates of rant and their rent was, consequently, not liable to enhancement. This objection has been overruled by the Courts below and a decree made in favour of the plaintiff. In this appeal that decree has been assailed substantially on two grounds; namely, first, that the proceeding was not maintainable under Section 105 of the Bengal Tenancy Act and that the proper remedy of the landlord was by way of a suit for enhancement of rent under Section 30 of the Bengal Tenancy Act; and secondly, that the decision of the Settlement Officer, confirmed on appeal by the Special Judge, is baaed on evidence inadmissible in law.

(2.) In so far as the first of these contentions is concerned, there is clearly no substance in it. The appellants have contended that a proceeding under Section 105 can be instituted only when there is no rent payable by the tenant to the landlord under the terms of a contract between the parties; in other words, that the provisions of Section 105 are applicable only when no rent has been fixed by agreement of parties. This view is negatived by sub Section 4 of Section 105 which provides that in settling rents under the section, the Revenue Officer shall presume, until the contrary is proved, that the existing rent is fair and equitable and shall have regard to the rules laid down for the guidance of the Civil Court in increasing or reducing rents, as the case may be. The appellants have contended that the rejection of their view leads to an anomaly, namely, whereas a decree in a suit for enhancement of rent under Section 30 is liable to be challenged by way of a first and a second appeal, an order for settlement of rent under Section 105 can be challenged by way of a first appeal only, as provided in Section 109A of the Bengal Tenancy Act. In our opinion, there is really no anomaly involved in this result. The Legislature intended that as in a proceeding under Section 105 the rent is settled by a Revenue Officer, his decision should not be treated in the game way as the decree of a Civil Court under Section 30. The view we take is in accordance with that adopted by Mr. Justice Carnduff in the case of Sheodhani Pandey v. Maharani Beni Pershad Keori 16 C.L.J. 67 : 16 Ind. Cas. 935. The first contention of the appellants, therefore, fails.

(3.) In so far as the second contention of the appellants is concerned, it is necessary to premise that their defence was that they held at fixed-rates of rent. They produced rent receipts for 20 years in order to prove that they held at a uniform rate of rent for that period, and they relied upon the presumption mentioned in Sub-section 2 of Section 50 of the Bengal Tenancy Act; because, notwithstanding the final publication of the Record of Rights, it was competent to them to do so as laid down by a Full Bench in the case of Pirthi Chand Lal v. Basarat Ali 37 C. 30 : 13 C.W.N. 1149 : 10 C.L.J. 343 : 3 Ind. Cas. 449. As these rent receipts were believed by the Court, the defendants became entitled to avail themselves of the statutory presumption mentioned in Section 50. The plaintiff, thereupon, produced his collection papers to show that the rent had varied from time to time at an earlier period of the tenancy. The main question raised in this appeal relates to the admissibility of these collection papers. They were produced by an officer of the landlord who deposed that they were in his custody. No question was put to him as to who had written the papers, nor is their any evidence on the record to show by whom the rents had been collected and when and by whom the entries in, the collection papers had been made. Under these circumstances, it has been contended by the appellants that these collection papers are not admissible under Section 34 of the Indian Evidence Act; reliance has been placed on their behalf upon a number of judicial decisions to which we shall presently refer, while it has been suggested on behalf of the respondents that there is a conflict of judicial opinion upon this subject.