SANATKUMAR MUKHERJI Vs. NARAYANCHANDRA GHOSE

JUDGEMENT

(1.) These appeals are by The defendant landlord in suits instituted by the plaintiffs tenants under the provisions of Section 106, Ben. Ten. Act, for correction of entries regarding the status of the tenants as finally published These tenants had been recorded as raiyats with occupancy rights, and the case made before the settlement officer in their plaints, filed under Section 105, Ben. Ten. Act, was that they were raiyats at fixed rates. The claim so made in the suits by the plaintiffs tenants was resisted by the defendant landlord, and the question in controversy was whether the plaintiffs tenants were raiyats at fixed rates or raiyats with occupancy rights. It may be stated, at the very outset, that, for the purpose of these appeals, regard being had to the judgments of the Courts below, it may be taken to be established that the jama-wasil-bakis, filed by the defendant landlord, in the suits on which he based his case that the tenants had merely rights of occupancy and that they were not raiyats at fixed rates, related to the mouza in which the tenancies forming the subject matter of the suits under Section 106, Bengal Tenancy Act, were situate, although it is apparent that the decision arrived at by the Courts below in this behalf is, to say the least, inconclusive in its nature. The Courts below found, on the materials placed before them by the tenants and by the landlord, that the defendant landlord had not succeeded in rebutting the presumption arising in favour of the plaintiffs tenants, under Section 50(2), Bangal Tenancy Act. It was held that the tenancies in question were all raiyatis held at fixed rates. The Assistant Settlement Officer, who dealt with the cases in the first instance, came to the definite conclusion that the plaintiffs had succeeded in establishing their cases, Their status as recorded in the finally published record-of-rights seemed to be incorrect and that they should be recorded as raiyats at fixed rates. The plaintiffs suits were, accordingly, decreed. The learned Special Judge, on appeal, has affirmed the decision arrived at by the Assistant Settlement Officer. He has come to the definite conclusion that the presumption, arising out of the 20 years payment of the same rent, was entirely unrebutted and, in that view of the case held that the plaintiffs tenants, in the suits under Section 106, Bengal Tenancy Act, had made out their case before the Court, and, agreeing with the decision arrived at by the Assistant Settlement Officer, dismissed the appeals by the landlord defendant in the suits.

(2.) In this appeal by the landlord, the st point raised relates to this, that the Court of appeal below ought to have held that the term "Permanent Settlement" mentioned, in Section 50, Ben. Tea. Act, meant the "Permanent Settlement of 1793." So far as the question is concerned, it is not very clear to us that the Special Judge in the Court of appeal below, has held anything to the contrary. The learned Judge has referred to the definition of "Permanent Settlement" contained fin the Bengal Tenancy Act, and has not said anything in his judgment, which can lead to the supposition that the Permanent Settlement, mentioned in Section 50, Ben. Ten. Act, was taken by him to bo anything but the Permanent Settlement of the year 1793. In our judgment, there is no substance in the first contention urged in support of these appeals.

(3.) In the next place, it has been urged before us that the Court of appeal below, having found that the tenancies in question came into existence after 1210 B.S. (1805) and that none of them were in existence at the time of the Permanent Settlement of 1793, ought to have held that the presumption of fixity of rent under Section 50, Ben. Ten, [Act, by reason of the payment of the same rent for the last 20 years, had in law been rebutted. The clear implication of the contention thus raised, in support of the appeals, is that Section 50 applied only to tenancies forming part of an estate permanently settled by the Permanent Settlement of the year 1793. As observed by Maclean, C.J., in the case of Tamasha Bibi V/s. Ashutosh Dhur (1900) 4 CWN 513, there is no reason for restricting the operation of the section: there are no words in the section which would justify such a restriction. Nor is there any reason for incorporating such words. As has further been observed by Banerjee, J., in the case referred to above, there is nothing in S, 50 to show that the tenancy in question must be situate within an estate which was permanently settled at the time of the Permanent Settlement as defined in Section 3, Ben. Ten. Act, that is, the Permanent Settlement of 1793. The fact of the estate within which the tenancies in question are situate having been permanently settled in 1805 and not in the year 1793, does not make any difference; and in our judgment, the tenants- respondents in these appeals were entitled to the benefit of the presumption under Section 50 (2), Ben. Ten. Act.