MOFIZUDDIN CHOWDHURY Vs. RAJENDRA NATH SANYAL

JUDGEMENT

(1.) These six appeals have bean dealt with together and they were preferred against decisions of the District Judge of Dinajpur reversing decisions of the Munsif of Balurghat. All these appeals were dealt with by one judgment in the lower Appellate Court. The suits out of which these appeals arise were suits for enhancement of rent. They were brought at the instance of the landlords who claimed enhancement under the provisions of Section 30, Sub- section A.B., B.T. Act. At the hearing the claim under Sub-section A was abandoned and only that under Sub-section B was pressed. The first Court decreed two of the suits granting enhancement at the rate of 5 annas in the rupee. The other four suits were dismissed on the ground that the defendants were tenure holders and that they hold the lands at fixed rates. The lower Appellate Court decreed all the six suits granting enhancement at 3 annas in the rupee and negatived the decision of the Munsif that the defendants were tenure-holders holding at fixed rates. The real contest arises with regard to an entry in the record-of-rights which was published in the year 1888 in which the defendants are described in respect of the lands comprised in these six appeals as sthitiban that is, settled raiyats. This record was, as I have stated, published so long ago as the year 1888 and has never been questioned since. The defendants either in the year 1888 or early in 1889 commenced suits against the present respondents for a declaration that their rent was not liable to enhancement; but they never ventured to assert in those suits that they were tenure holders and apparently accepted at that time as correct the entry in the record-of-rights that they were settled raiyats. Judgments in those suits were given in November, 1889, and we think that it is matter of great significance in considering the claims which are now put from on behalf of the appellants that at that time they never ventured to assert that they were anything but raiyats.

(2.) Three main points have been urged before us on behalf of the appellants. First, it is said that the lower Appellate Court was wrong in stating that the presumption arising under Section 50 of the Bengal Tenancy Act did not arise. Secondly, it is said that the learned Judge in the Court below was wrong in holding that the holdings were raiyati holdings and not tenures, and thirdly, it was contended that even if the presumption under Sec. 50 did not arise the appellants were entitled to the presumption which would be raised from their having occupied the lands in question for a long period at a fixed rate, the period being aft least 35 years. For an understanding of the first point it is necessary to refer to some provisions of the Bengal Tenancy Act and the references that I am making-are to the provisions of the original Act of 1885 before it was amended. Section 102 of that Act provides that where an order is made under the provisions of Section 102,. that is, an order directing the preparation of the record-of-rights the particulars to be recorded are to be specified in the orders and that they may include either without or in addition to other particulars some or all of the following, namely: (1) what class the tenant belongs to, that is to say,: whether he is a tenure- holder raiyat holding at fixed rates, occupancy raiyat, non-occupancy raiyat or under-raiyat, and if he is a tenure-holder whether he is a permanent tenure-holder or not and whether his rent is liable to enhancement during the continuance of his tenure. The next section to which I must refer is Section 115 which provides that where the particulars mentioned in Section 102, Clause (b) have been recorded in respect of any tenancy the presumption under Section 50 shall not thereafter apply to that tenancy. The results that if the entries in the record-of-rights do not record particulars under the provisions of Section 102 (b) then the presumption under Section 50 of the Bengal Tenancy Act applies, and of course if the particulars to be recorded under Section 102 (b) have not been rightly recorded, equally then the presumption under Section 50 arises and Section 115 has no application. Now what is urged before us on behalf of the appellants on this point is -that if you consider the provisions of Section 102 (b) you do not find in it any provisions for recording persons as settled raiyats. It is said that they must be recorded as raiyats holding at fixed rates or occupancy raiyats or under-raiyats and accordingly it is said that merely recording the defendants as settled raiyats is no compliance with Section 102 (b) and that consequently Section 115 of the Act has no application. We have been referred to, and the lower Appellate Court has also referred to, Rule 22 of the rules published under the provisions of the Tenancy Act and there it is undoubtedly provided that an entry can be made such as has been made in the present case, that is an entry of persons as settled raiyats. Moreover it is, I think, noticeable that if you consider the provisions of Section 102 they are not mandatory but provide that certain matters may be included either without or in addition to the other particulars set out in the section. But the main contention which has been urged against the argument of the appellant is that the entry settled raiyat is a compliance with the provisions of Section 102-B, it being said that settled raiyats or occupancy raiyats and that therefore the entry settled raiyat does comply with the provisions of Section 102-B. In this connection we were referred to the definition of raiyats contained in Section 4 of the Tenancy Act. Section 4, Sub-section (iii) defines raiyats as being of three classes, namely, (a) those holding at fixed rates, (b) occupancy raiyats and (c) non-occupancy-raiyats and what is said is this: that if you consider the provisions of Section 4 (b) with the provisions of Secs.20 and 21 of the Tenancy Act you must arrive at the conclusion that settled raiyats are in effect occupancy raiyats. Now if this is so then the entry of the defendants as occupancy-raiyats means that they are not raiyats holding at fixed rate; for if they were, then they would be entered as such having regard to the provisions of Section 4 (3) (a) of the Bengal Tenancy Act. It is necessary now to turn to the provisions of Secs.20 and 21 of the Act. Section 20 provides that every person who has continuously had as a raiyat land of any village shall be deemed to have become a settled raiyat of that village and Section 21 states that every person who is a settled raiyat of a village within the meaning of Section 20 has a right of occupancy in all lands for the time being held by him as a raiyat of that village and consequently it is said that having regard to these sections the term settled raiyats connotes occupancy raiyats and consequently, as I have already stated, the provisions of Section 102 B have been completely complied with and that the presumption under Section 115 does not arise. We think that this contention is) correct and that the entry of the defendants as settled raiyats is a compliance) with Section 102-B and that consequently the presumption under Section 50 does not arise. We were referred to on behalf of the appellants to the case Kamaluddin Ahmad V/s. Ramanand Singh A.I.R. 1924 Patna 443. There is no doubt that the Patna Court there held that the presumption under Section 50 was not ousted by the provisions of Section 115 as the particulars required under Section 102 were not recorded; but we do not think that that case has any bearing on the facts of the case before us. There the only entry made in the record-of-rights was that the tenants were recorded as tenure holders without any specification whether the tenure was permanent or not and whether the rent was liable to enhancement or not. New if one turns to the provisions of Section 102 you find that Sub-section (b) provides that where a parson is recorded as a tenure-holder there must also be recorded whether he is a permanent tenure-holder or not, or whether his land is liable to enhancement during continuance of his tenancy. So, clearly, the entry with which the Patna Court was dealing did not satisfy the provisions of Section 102 (b) and consequently the provisions of Section 115 did not apply and the presumption under Section 50 clearly arose. But if I am right in the view that I have just expressed, the entry settled raiyats means the same as if there had been entered the words occupancy raiyats or such entry having regard to the definition in Section 4(3)(a) indicates that they do not; hold at fixed rates and accordingly the provisions of Section 102 (b) are in my opinion satisfactorily complied with. So much then for the first point raised in this appeal. We think that the lower Appellate Court was quite right in holding that the provisions of Section 102 (b) bad been complied with and that consequently under the provisions of Section 115 the presumption under Section 50 did not arise.

(3.) The next question urged is that the lower Appellate Court was not right in holding that the holding in suit was a raiyati holding and not a tenure. It seems to me that the lower Appellate Court has arrived at a finding of fact upon this point. That finding is to be found at page 25 of the paper-book; "I therefore hold that the defendants are not tenure- holders in respect of any of the holdings" and this finding follows after the consideration in the previous pages of the paper-book of such contentions as ware put forward on behalf of the defendants on this point. The main argument, however, which has been urged on behalf of the appellants is that the lower Appellate Court has excluded from its consideration the presumption a rising under Section 5 (5) of the Tenancy Act. In five of the suits out of which these appeals arise the holdings amount to over 100 standard bighas and accordingly it was urged on behalf of the appellants that the pre-sumption arising under the section to which I have just referred should have bean applied and it is said that the lower appellate) Court was wrong in merely applying the presumption arising from the entry in the record-of-rights and in not considering such presumption as would arise from the fact that five of the holdings were over 100 bighas in extent; but a consideration of the judgment shows, I think, that it is not a correct criticism of the learned Judge's judgment. At page 23 he states: "They are entitled to take the presumption of Section 5, Sub-section 5 and throw it into the scale on their side." It therefore seems to me that the appellants are wrong in saying that the learned Judge in the lower Appellate Court has merely relied on the provisions of Section 109 and has not taken into consideration such presumption as may arise under the provisions of Section 5 (5). On this point there is the further matter to which I have already referred namely that from the year 1833 the entry has never been questioned and that the defendants from the year 1888 until now have never ventured to describe themselves as tenure-holders in respect of this land.