PRASANNA KUMAR SEN Vs. DURGA CHARAN CHAKRABARTI

JUDGEMENT

(1.) This is an appeal under Clause 15 of the betters Patent form the judgment of Mr. Justice Teunon in a suit for enhancement of rent.

(2.) It appears that a Record of Rights was published in 1914 and an entry was made therein to the effect that the tenant-defendant was a sayhitwan raiyat that is, an occupancy raiyai. On the 30 January 1918 the plaintiff-landlord instituted the present suit for enhancement of rent on the ground of rise in the price of staple food crops. The defendant resisted the claim on the ground that he was a raiyat at fixed rate, and in support of this allegation he invoked the aid of Section 50 of the Bengal Tenancy Act. His contention was negatived by the Primary Court and the claim for enhancement was allowed. Upon appeal the Subordinate Judge held that the defendant was entitled to the benefit of the presumption mentioned in Section 50 and disallowed the claim for enhancement. Upon appeal to this Court Mr. Justice Teunon has reversed the decision of the Subordinate Judge on the ground that under Section 115 the tenant was not entitled to rely upon the presumption mentioned in Section 50 in support of this view, reference has been made to the cases of Harihar Persad Bajpai V/s. Ajub Misir 22 Ind. Cas. 604 : 45 C. 930 and Muralidhar Aditya V/s. Radha Mohan Hazra 51 Ind. Cas. 552. In the present appeal the view taken by Mr. Justice Teunon has been assailed, as contrary to the decisions in Secretary of State for India in Council V/s. Kajimuddi 26 C. 617 : 8 Ind. Dec. (N.S.) 997 and Maharaja Radha Kishore Manikya Bahadur V/s. Umed Ali 12 C.W.N. 904. We are of opinion that Section 115 was not correctly interpreted in the decisions mentioned, which are in conflict with the principle of the decision of the Full Bench in Pirthi Chand Lal Chowdhury v. Sheika Basarat Ali 3 Ind. Cas. 449 : 37 : 13 C.W.N. 1149 : 10 C.L.J. 343 (F.B.).

(3.) Section 115 provides that when the particulars mentioned in Section 102, Clause (b), have been recorded under, Chapter X of the Bengal Tenancy Act in respect of a tenancy, the presumption under Section 50 shall not thereafter apply to that tenancy. On behalf of the appellant, reliance has been placed upon the dictum in the case of Secretary of State for India in Council V/s. Kajimuddi 26 C. 617 : 8 Ind. Dec. (N.S.) 997 that this Section seems to contemplate a case in which a raiyat is seeking to get the benefit of the presumption for a period subsequent to the time when the Record of Rights was framed. We are unable to accept this interpretation of the scope of Section 115. The expression "thereafter" in that section clearly signifies "after the particulars have been finally recorded after recourse to all the provisions contained in Chapter X for the attainment of finality in this respect." This was the view adopted by the Pull Bench in the case of Pirthi Chand Lal Chowdhury V/s. Sheikh Basarat Aid 3 Ind. Cas. 449 : 37 : 13 C.W.N. 1149 : 10 C.L.J. 343 (F.B.) where it was ruled that Section 115 Mid not exclude the application of the presumption when the particulars had been recorded under Chapter X and it was found necessary still to have recourse to the procedure prescribed by one or other of the sections in that Chapter. The case before us, however, is of an entirely different description. Here the record was finally published in 1914. The tenant might have, but did not, come within the prescribed time to get the record altered by recourse to one or other of the provisions of Chapter X. The result was that the record became final. A suit has now been instituted for enhancement of rent. This is not a suit instituted under Chapter X of the Bengal Tenancy Act. Consequently, in such a suit the tenant is not entitled to the benefit of the presumption under Section 50. The entry which was made in this case under Section 102(6) was that the tenant belonged to the class of occupancy raiyats; in other words, that he was not a raiyat holding at a fixed rate. His rent was consequently liable to enhancement in accordance with the provisions of the Bengal Tenancy Act. The landlord claims to enhance the rent of the tenant. The tenant sets up the defence, that he is a raiyat holding at a fixed rate; and in support of this contention he relies upon the presumption mentioned in Section 50. The presumption is excluded by the express terms of Section 115 and is of no avail to him. In these circumstances, Mr. Justice Teunon has correctly held that the judgment of the Subordinate Judge which was based upon the presumption under Section 50 cannot be supported and that the case must be remanded for re-consideration from this standpoint. We are of opinion that this view is in accordance with the decision in Bamandas Bidyasagar v. Sadhu Majhi 64 Ind. Cas. 445 : 26 C.W.N. 945 where the judgment of Mr. Justice Teunon now under appeal was referred to with approval.