SURENDRA NATH MAJUMDAR Vs. HARIPADA SARDAR

JUDGEMENT

(1.) This appeal is in a suit instituted by the plaintiffs for a declaration that the defendants are occupancy ryots and not ryots at fixed rent as recorded in the khatian prepared and finally published under Chapter X of the Bengal Tenancy Act. The khatian has recorded the defendants as ryots at fixed rent holding under the plaintiffs at the rent of Rs. 14-6 per year. The plaintiffs succeeded before the Munsif but the Subordinate Judge has dismissed their suit.

(2.) It appears that before the Record of Rights was published, the plaintiffs instituted a suit (No. 988 of 1915), against the defendants for recovery of arrears of rent which they claimed at the rate of Rs. 14-6 per year. The defendants disputed the rate of rent which they alleged was Rs. 14-1 per year. In Paragraph 6 of the written statement filed in that suit they stated that they were holding the lands on the terms of an unregistered kayemi mukarari patta executed by the predecessors of the plaintiffs in favour of their predecessors on Baisakh 2, 1238, B.S. which had fixed the rent at Rs. 14-1 in perpetuity. To decide the question as to the rate of rent payable, the question of the genuineness of the said patta had to be gone into. The Court found that it could not place any reliance upon the unregistered patta. The plaintiffs accordingly got a decree at the rate Rs. 14-6 yer year and the question as to the status of the tenant was left open as it was not necessary in that suit to decide it. Thereafter settlement proceedings were started. It appears that in the draft record the defendants had been shown as occupancy ryots holding at a rental of Rs. 14-6 per year. The defendants filed an objection before the Assistant Settlement Officer and urged that as they had been paying the same rent (namely Rs. 14-6) for the last twenty years, the presumption under Section 50 of the Bengal Tenancy Act was applicable and they ought to be recorded as ryots at fixed rent. This objection was given effect to and the Record of Rights which was finally published on November 23, 1923, showed the defendants as ryots at fixed rent.

(3.) Before me Dr. Mukherjee has urged two points namely, (1) the admission in Paragraph 6 of the written statement filed by the defendants in Suit No. 988 of 1915, rebuts the presumption under Section 50 and as it is admitted that the entry in the Record of Rights was made only on the basis of the said presumption, there is no foundation for the said entry, and (2) That when a tenant bases his case of having the status of a tenant at fixed rent on a patta, there is no scope for the application of Section 50 of the Bengal Tenancy Act, when that patta is found to be a false one. He says that after having obtained an adverse decision on the patta the tenant cannot be allowed to fall back upon the presumption under Section 50 of the Bengal Tenancy Act.