JUGAL KISHORE BANERJEE Vs. SREERAM CHATTERJEE

JUDGEMENT

(1.) This appeal arises out of a suit for the recovery of arrears of rent for the years 1341 to 1344 B.S. The rent was claimed at the rate of 8 maps of paddy per year. The learned Munsif decreed the suit, but on appeal the learned Subordinate Judge held that the real rent was 4 maps of paddy per year and he varied the decree granted by the learned Munsif accordingly. The plaintiff landlord relied on an entry in the finally published record of rights which showed that the tenancy was an occupancy holding and that the rent thereof was 8 maps of paddy per year. The defence was that the rent had never been more than 4 maps of paddy and in support of this the defendants produced a decree of the year 1850 which was pronounced in a suit between the predecessors of the plaintiff and the predecessors of the defendants and which recited that the rent was 4 maps of paddy per year. The learned lower appellate Court has virtually held that by producing and proving this decree the defendants have discharged the burden of rebutting the presumption of correctness attaching to the finally published record of rights, and that the burden was then shifted to the shoulders of the plaintiff whose duty it was to show by positive evidence that the rate of rent had been enhanced subsequent to the year 1850 to the figure of 8 maps of paddy. In dealing with this question, the learned Subordinate Judge has expressed himself as follows: The question is, whether by the decree in the rent suit, the defendants have been able sufficiently to rebut the presumption of the Cadastral Survey khatian.... The learned lower Court has found that the jama mentioned in that decree is the identical jama of which rent had been claimed in the present suit. But he was evidently of opinion that as the decree was passed so long ago as 1850, there must have been some change as otherwise the jama would not have been recorded as 8 maps in the Cadastral Survey Khatian. But in such a case when the decree was specifically pleaded in the written statement, it was for the plaintiff to prove that there had been such a change in the jama. The best way of doing it would have been by production of his collection papers but the plaintiff abstained from doing so.... It has been held that when both parties adduce evidence the record of rights loses its force when the party relying on it fails to show that there was any foundation for the entry. In the absence of collection papers produced by the plaintiff to show that there was a variation of the jama or other evidence to that effect it was not proper for the learned lower Court to assume that there must have been some change. I am of opinion that the Cadastral Survey record has been sufficiently rebutted by the decree in question.

(2.) In my judgment this reasoning of the learned Subordinate Judge loses sight of the provisions of Section 115, Ben. Ten. Act, and also of the language of Sub-section (2) of Section 50 of that Act. Section 115 is in these terms: When the particulars mentioned in Section 102, Clause (b), have been recorded under this chapter in respect of any tenancy, the presumption under Section 50 shall not thereafter apply to that tenancy.

(3.) Referring back to Section 102, Clause (b) of the Act, we find that according to that provision the record of rights must contain a description of the class to which the tenant belongs and a statement as to whether he is a raiyat holding at fixed rates, an occupancy raiyat or a non-occupancy raiyat. Now, as stated before, this tenancy was recorded in the record of rights as an occupancy holding, and it is not disputed that the rent was liable to enhancement. This being the case it follows from the terms of Section 115 that any presumption indicating that the jama was held at a fixed rate of rent which might otherwise have arisen under Section 50 of the Act was not to apply. Then again the exact language of Sub-section (2) of Section 50 must be carefully read. That section says: If it is proved in any suit or other proceeding under this Act that either a tenure- holder or raiyat and his predecessor-in-interest have held at a rent or rate of rent which has not been changed during the 20 years immediately before the institution of of the suit or proceeding, it shall be presumed, until the contrary is shown, that they have held at that rent or rate of rent from the time of the permanent settlement.