NARENDRA LAL CHOWDHURY Vs. BENODE BEHARI SADHUKHAN

JUDGEMENT

(1.) This is an appeal by the Plaintiff's landlords in a proceeding instituted by them under Section 105 of the Bengal Tenancy Act for settlement of a fair and equitable rent by way of enhancement of the existing rent of the disputed holding. The defendant has been entered as an occupancy raiyat in the record-of-rights. But in answer to the claim for enhancement of rent he contended that he had the status of a raiyat at a fixed rate. In support of this position he produced rent-receipts to show that he had held the tenancy at the same rate for more than 20 years. The settlement officer held that inasmuch as he was an occupancy raiyat he was not entitled to the benefit of the presumption formulated in Section 50 of the Bengal Tenancy Act. On appeal, the Special Judge held that although the defendant might be an occupancy raiyat, he was entitled to the benefit of the presumption mentioned in Section 50. The Special Judge then considered the rent-receipts, and although receipts for twenty continued years had not been produced, he held that there was sufficient evidence to show that the tenant had held at a uniform rate for more than twenty years. This presumption in his opinion was not rebutted in any way. In this view he dismissed the application for enhancement of rent.

(2.) On behalf of the plaintiffs we have been pressed to hold that an occupancy raiyat is not entitled to the benefit of Section 50. We are of opinion that this contention is opposed to the clear terms of Sub-section (1) of that section which provides that where a raiyat and his predecessors-in-interest have held at a rent or rate of rent which has not been changed from the time of the Permanent Settlement, the rent or rate of rent shall not be liable to be increased except on the ground of alteration in the area of the holding. This embodies the substantive rule of law. Sub-section (2) then proceeds to lay down that if it is proved in any suit or other proceeding under the Bengal Tenancy Act that a raiyat and his predecessors-in- interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the institution 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. This deals with the mode of proof and raises a rebut-table presumption. We can see no reason why an occupancy raiyat should be excluded from the category of a raiyat for the purposes of this section. Section 4 mentions the following classes of tenants, namely, tenure-holders including under-tenure-holders, raiyats and under-raiyats. Raiyats are then classified as {a) raiyats holding at fixed rates, (b) occupancy raiyats and (c) non-occupancy raiyats. This implies, it is argued, that a person cannot come under two of these categories. This contention is opposed to the decision in Sarbeswar Patra V/s. Bijoy Chand Mohatap A.I.R. 1922 Cal. 287, where it was held that a raiyat at a fixed rate may become a settled raiyat of the village under Section 20 and thus acquire a right of occupancy within the meaning of Section 21; that the status of a raiyat at a fixed rate can be combined with that of an occupancy raiyat; that the higher status would supersede so much of the lower as might be inconsistent with it and that either status might be used as a shield so far as it extended. There is nothing in the decision in Bansidas V/s. Jagadip Narain Chowdhury (1898) 24 Cal. 152, which militates against this view. We may add that a raiyat at fixed rate is not created by Section 50, which merely furnishes a rule of evidence to enable a person to prove with facility that he is a raiyat at a fixed rate. We hold accordingly that the defendant was entitled to the benefit of Section 50 notwithstanding the fact that he was recorded as an occupancy raiyat.

(3.) It has finally been urged that Section 115 debars the defendant from the benefit of Section 50. This contention is based entirely, on a misapprehension. That section, as has been pointed out by a Full Bench of this Court in the case of Pirthi Chand Lal V/s. Basarat Ali (1910) 37 Cal. 30, does not come into operation until all possible proceedings under Chapter X have been exhausted. The proceeding now before the Court is a proceeding under Section 105.