OSMAN MANDAL Vs. RADHIKA MOHAN ROY

JUDGEMENT

(1.) These two appeals are by the defendant against decisions of the Subordinate Judge of 24- Pargannahs affirming decisions of the Munsif of Baruipur.

(2.) The main point that arises for our decision in these appeals is, whether the tenant defendant who is an occupancy raiyat is entitled to the protection of Section 50 of the Bengal Tenancy Act. Now, what has been argued before us is that despite the definition of Permanent Settlement contained in Section 3, Sub-section (12) of the Act, the decisions of this Court go to show that the words Permanent Settlement as used in Section 50 are not to be confined to the Permanent Settlement of 1793 and it is said that inasmuch as the land in suit was not permanently settled until 1905 we should hold that the words Permanent Settlement as appearing in Section 50, Sub-section (1) and a so in Sub-section (2) refer not to the Permanent Settlement of 1793 but to the Settlement of 1905 when the land itself was permanently settled. Now, no decision has been cited to us which would show that the words Permanent Settlement in Section 50, Sub-section (1) of the Bengal Tenancy Act, do not relate to the Permanent Settlement of 1793. But so far as Sub-section 2 is concerned we have been referred in support of the argument addressed to us to the case of Tamasha Bibi V/s. Ashutosh Dhur 4 C.W.N. 513 at p. 517 and to the remarks of Sir Francis Maclean at page 514 in that case when he says discussing Sub-section (2) of Section 50 that he sees no reason for restricting the operation of the section to the Permanent Settlement of 1793. We have been further referred to a passage in Mr. Justice Banerjee, judgment at page 515 to the same effect The other case to which we have been referred is the case of Khettermoni Dasi V/s. Jiban Krishna Kundoo 28 Ind. Cas. 510 : 21 C.L.J. 315: 19 C.W.N. 646 which cites and follows the decision in Tamasha Bibi V/s. Ashutosh Dhur 4 C.W.N. 513 at p. 517. Now, as we read the decision in Tamasha Bibi V/s. Ashutosh Dhur 4 C.W.N. 513 at p. 517 neither of the learned Judges who decided that case say that the Permanent Settlement in Section 50 Sub-section (2) does not mean the Permanent Settlement of 1793 But what they say is this that the presumption of the sub section still applies even if the rent was permanently settled at a later date than 1793. That seems to in to be the real ratio decidenti of the decisions in both the cases to which we have been referred. Accordingly it does not seem to us that there is any force in the first contention raised before us with regard to the meaning of the words Permanent Settlement in the two subjections of Section 50 to which we have referred. To gain the advantage of Section 50, therefore, the defendant has to show that the rate of rent has not been changed from the time of the Permanent Settlement of 1793. But there is an express finding that the jama was created some 70 years ago. Accordingly it is not fact that the rent has not changed since 1793. Then again so far as sub Section (2) is concerned no doubt there is a finding of the Munsif that the rent has not been changed during the 20 years prior to the institution of the suit and that is a finding to the contrary within the meaning of the excluding part of the sub-section as the origin of the jama has been found to be some 70 or 75 years ago.

(3.) A further point was urged before us, namely, that assuming that Section 50 has no application, from the fact that uniform rent has been paid for a period of 20 years the Court might draw a presumption in favour of the defendant and we were referred to the case of Nityanand Pal V/s. Nanda Kumar 10 Ind. Cas. 163 : 13 C.L.J. 415 in support of this proposition. Now there is no doubt that this is so. But so far as the present case is concerned this point was never raised in the lower Appellate Court, and although it is true that there is a finding of the Munsif that the tenant paid rent at a uniform rate for more than 20 years we have no express finding of the lower Appellate Court with regard to this although he does refer to the payment of uniform rate of rent for a period of 24 or 25 years. But if even if there were such a finding we should not be prepared from the length of time or under the facts and circumstances of the present case to draw the presumption which we were asked to draw.