SARAT CHANDRA PAL Vs. MAHAMMAD AKBAR

JUDGEMENT

(1.) IT is quite clear in this case that the learned Subordinate Judge was wrong in the view that he took of the provisions of Section 115 of the Bengal Tenancy Act. He has held upon the authority or supposed authority of the cases of Golab Misser V/s. Kumar Kalanand Singh 6 Ind. Cas. 217 : 14 C.W.N. 884 : 12 C.L.J. 107 and Pirthi Chand Lal Chowdhury V/s. Basarat Ali 3 Ind. Cas. 440 : 37 C. 30 : 13 C.W.N. 1149 : 10 C.L.J. 343 (F.B.) that in spite of the Record of Eights, the defendants are entitled to the presumption which arises under the provisions of Section 50, Clause (2) of the Bengal Tenancy Act, IT will be seen that the question whether the presumption arises or not was not definitely dealt with in the case reported as Golab Misser v. Kumar Kalanand Singh 6 Ind. Cas. 217 : 14 C.W.N. 884 : 12 C.L.J. 107 and the Full Bench decision reported as Pirthi Chand Lal Chowdhury V/s. Basarat All 3 Ind. Cas. 440 : 37 C. 30 : 13 C.W.N. 1149 : 10 C.L.J. 343 (F.B.) referred to above, if anything, is in support of the contrary view. IT is unnecessary to refer to all the cases bearing on this point as it will be seen that the decisions in the case of Secretary of State for India V/s. Kajimuddi 26 C. 617 : 13 Ind. Dec. (SIC) (N.S.) 997 and in the case of Maharaja Radha Kishore Manikya Bahadvir V/s. Umed Ali 12 C.W.N. 904, in so far as they profess to take a contrary view did not correctly interpret the provisions of this section and they are in conflict with the principle of the decision of the Full Bench in the case of Pirthi Chand Lal Chowdhury V/s. Basarat Ali 3 Ind. Cas. 440 : 37 C. 30 : 13 C.W.N. 1149 : 10 C.L.J. 343 (F.B.). The view I take is in accord with what was taken by Mr. Justice Teunon in a case which came before him for decision when sitting singly, namely, that, after a Record of Rights becomes final, a tenant is debarred by the provisions of Section 115 of the Bengal Tenancy Act from claiming the presumption under Section 50 of that Act and that the expression "thereafter" in Section 115 means "after the particulars have been finally recorded after recourse to all the provisions contained in Chap. X of that Act for the attainment of finality on this respect," a view which was upheld on appeal under the Letters Patent by this Court in the case of Prasanna Kumar Sen V/s. Durga Charan Chakrabarti 70 Ind. Cas. 537 : 26 C.W.N. 947 : 36 C.L.J. 291 : (1922) A.I.R. (C.) 146 : 49 C. 919. The same view has also been taken by this Court in the case of Bamandas Bidyasagar Bhattacharya V/s. Sadhu Majhi 61 Ind. Cas. 445 : 26 C.W.N. 915, and it is too late now to contend that the view taken in the cases reported as Maharaja Radha Kishore Manikya Bahadur V/s. Umed Ali 12 C.W.N. 904 and Secretary of State for India V/s. Kajimuddi 26 C. 617 : 13 Ind. Dec. (SIC) (N.S.) 997 lays down the correct interpretation to be attached to Section 115 of the Tenancy Act. I am disposed to think, however, that, although the defendants are not entitled to the benefit of the presumption under Section 50, Clause (b) of the Act, the other circumstances of the case should be considered in order to enable the Court to come to a conclusion whether the rent payable by them is enhancible or not, and that aspect of the case has not been considered by the lower Appellate Court. The only finding that it has arrived at is to the effect that, for more than twenty years before the date of the Record of Rights, the defendants had been paying the same rate of rent. That does not enable the Court to find out since when the same rate of rent had been paid and that should be one of the factors that is to be determined in this case, [Guru Charan Nandi V/s. Sarab Ali 52 Ind. Cas. 79 : 23 C.W.N. 1041 : 30 C.L.J. 9.] In this view of the matter, I set aside the decree of the Court of Appeal below and send the case back to that Court to be dealt with afresh in the light of the; observations made above. Costs will abide the result.