SM RAKIMJAN Vs. AMAR KRISHNA CHOUDHURY

JUDGEMENT

(1.) In this second appeal the only question that arises is as to the amount of rent for which the decree ought to have been passed in favour of the landlord. The landlord claimed that the rent in respect of tenancy in question wag fixed at the rate of Rs. 7 per annum. The tenant, on the other hand, claimed that the rent was Rs. 2-4. In the Trial Court the plaintiff himself gave evidence orally to the effect that the rent was Rs. 7; and among the documents filed in the Trial Court in this case, was a Record-of-Rights in which, in respect of a particular plot which was specified by a particular number in the Khatian, and which the plaintiff claimed, was the land which is the subject-matter of the tenancy in question, the rent was entered as Rs. 7. However, the learned Trial Court came to the conclusion that there was a pottah and there was certain dakhilas which purported to show that rent was payable and had been paid in respect of a tenancy at the rate of Rs. 2-4 as urged by the defendant, and he came to the conclusion that the pottah and the dakhilas referred to the premises in suit and passed a decree for rent at the lower rate. In the lower Appellate Court a different conclusion was arrived at, and the grounds upon which the learned Judge of the lower Appellate Court based his conclusion that the higher rate of Rs. 7 ought to be the rate at which rent should be recovered by the plaintiff were two-fold, the first ground being that whereas there were three different plots leased by the plaintiff to the defendant in respect of one of which the rent was Rs. 7, with respect to another Rs. 2-4 and with respect to a third Rs. 2-2, the defendant had <JGN>Page</JGN> 2 of 3 not attempted to identify the pottah and the dakhilas as being referable to the land in suit in the present case. He, therefore, came to the conclusion that that evidence was valueless for the purpose in hand, namely, for the purpose of discovering what was the rate at which rent was payable in respect of the premises in suit. I have been pressed by this fact that the defendant had applied before the trial that a local investigation should be held as to the area of the land in question. That application was rejected upon the ground that the predecessor- in-title of the defendant who had had an opportunity of making the application had refrained from doing so, and that, at the time when the application was made, it was too late and that it was unreasonable that it should be granted. I am not satisfied that that was the proper manner in which that application ought to have been treated. But if the local investigation was not permitted, it must have been obvious to the defendant that it had become all the more important for him satisfactorily to identify the plots in question in this suit, with the plots in respect of which the pottah and the dakhilas were created. The learned Judge in the lower Appellate Court nevertheless has come to the conclusion, to use his own words, that " the identity of the pottah land with the rent land was not even attempted to be established" and dakhilas, even if genuine, do not contain anything to show that they were given in respect of the rent of land in suit. In these circumstances, I am not disposed to come to the conclusion that the decision at which he arrived on this matter was wrong.

(2.) The second ground upon which the learned Judge in the Court below based his disagreement with the decree passed in the Trial Court was that if you look at those khatians to which the attention of the Court was not apparently drawn at the trial, it will appear that they wore evidence which satisfactorily corroborated the oral evidence given by the plaintiff to the effect that rent was fixed at the rate of Rs. 7. As regards that matter the learned Vakil for the appellant has urged that the lands in question in this case being non-agricultural lands were lands which were not subject to the provisions of Chapter X of the Bengal Tenancy Act, and that, therefore, no entry in respect of such lands could properly be made in the Record-of- Rights and he contends, therefore, that the entry in the Record-of-Rights must be disregarded as being altogether inadmissible. In my opinion, this contention is not sound. Under Section 103 B (3) of the Bengal Tenancy Act" every entry in the Record-of-Rights so published," that is, published in accordance with the provisions of the Act, "shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved by evidence to be incorrect." Now, this question arose for consideration in the case of Sasi Khanta Acharjya v. Sandhya Moni Dasya A.I.R. 1921 Cal. 236. In that case two points were taken--one, that the land in question being non-agricultural was not subject to the Bengal Tenancy Act, and therefore, no entry in the Record-of-Rights could properly be made with respect to it. The Court decided against that contention and held that; the lands were subject to the Bengal Tenancy Act. The second question which was raised and decided in that case was that, assuming that the lands were not subject to the Bengal Tenancy Act and, therefore, no entry could properly be made in respect of them no presumption, as set out in Section 103-B (3), as to the correctness of the entries could arise. It was not contended in that case that the entries<JGN>Page</JGN> 3 of 3 were not admissible in evidence, but it was urged that, although they might be admissible, no presumption as to the correctness could be made. The learned Chief Justice at page 485 observes: The learned Vakil for the defendant has supported his proposition that if an entry has been made in the Record-of-Rights with regard to land which does not come within the scope of the Bengal Tenancy Act and with regard to which the Revenue Officer had no jurisdiction to make the entry, no presumption arose under Section 103-B (3), Bengal Tenancy Act. I am not prepared to go so far as to say that in this case no presumption arose from the entry in the Record-of-Eights, but I am prepared to say that the presumption could not be of such great weight as would be the case if the entry were with regard to matters which are rightly and properly included in the Record of-Rights.

(3.) Now, applying the proposition laid down by the learned Chief Justice to the facts of this case, in my opinion, the fact that in the Record-of-Rights the rent of the land in suit is entered as being Rs. 7 was admissible in corroboration of the evidence given by the plaintiff that the rent of the premises had in fact been fixed at Rs. 7. The weight to be attached to that corroborative evidence is a matter which, with all the other circumstances in the case, the learned Judge was entitled to take into consideration before deciding what was in fact the rate at which the rent of the premises had been fixed. In these circumstances, and for the reasons which 1 have given, the issue in this case in the end turns out to be one of fact as to whether, having regard to the evidence adduced on one Bide and on the other, the learned Judge in the lower Appellate Court could reasonably have reached the conclusion at which he arrived. In my opinion, there was evidence before him which would justify him in arriving at the conclusion to which he came and in my opinion, for these reasons, this appeal should be dismissed with costs. Suhrawardy, J.