RAJMOHINI DASI Vs. NAGENDRA KUMAR TALPATRA

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the plaintiff for recovery of khas possession of certain lands. The plaintiff's case was that the lands comprised a non-transferable occupancy holding and the holding had been transferred by the previous tenants in favour of the defendants. The plaintiff, therefore, asks for khas possession. The suit was decreed in the Court of first instance. The lower Appellate Court has reversed that decision and dismissed the suit. The plaintiff has, therefore, preferred this appeal.

(2.) The first contention urged on behalf of the appellant is to the effect that the lower Appellate Court was in error in applying to the case the presumption contained in Clause (2) of Section 50, Bengal Tenancy Act. The suit being against a person who is said to be a purchaser of a non-transferable occupancy holding is not a suit under the Bengal Tenancy Act and it is urged that in a suit of this description the presumption to which I have referred is not applicable. That is no doubt so, but the question to be considered is as to whether the learned Judge, of the Court below has relied upon the presumption as contained in Clause (2) of Section 50 or he has not taken the facts into consideration in order to find what inferenee may legitimately be drawn from them. What the learned Judge has stated in his judgment is this. He has observed that it is well-settled that apart from the provisions of Section 50(2) it is open to the Court to draw an inference of a jote having been held at a fixed rent from the time of the Permanent Settlement from the fact of long payment of a uniform rent. He has found in his judgment that the, origin of the tenancy is not known that the two suits which were instituted for enhancing the rent of the tenancy were unsuccessful that a third suit which was instituted for ejecting them had failed that in point of fact the rental remained unchanged for over 60 years, and that the tenancy has passed from generation to generation, and upon a consideration of these circumstances he has held that the reasonable inference to be drawn is that the holding was a maurasi mokarrari raiyati. The learned Judge, therefore, did not rely upon the presumption as a necessary presumption arising under Section 50 (2), Bengal Tenancy Act, but from the fact that rent has been uniform for a long series of years taken in conjunction with the other circumstances to which I have already referred and which have been found to exist in connection with this holding he has come to the conclusion. that it was a maurasi mokarrari raiyati. It cannot, therefore, be said that the learned Judge has relied upon the presumption as contained in that section but has drawn art inference from the facts which to some extent are analogous to the presumption which arise under that section. That this is permissible has been laid down in series of cases of this Court amongst which reference may be made to the decision in the case of Pran Krishna Saha V/s. Mukta Sundari Dassya 21 Ind. Cas. 544 18 C.L.J. 193 where it has been laid down that in cases to which the presumption under Section 50 (2) is not applicable the Court is entitled to consider the facts in view of all the circumstances and determine whether it was not a just inference that the holding bears a fixed rental, and that there is nothing objectionable in drawing such an inference so long as the Court as does not regard itself as legally bound to apply the presumption which arises under that section. Much reliance has been placed on behalf of the appellant upon the case of Jagabandhu Saha V/s. Magnamoyi Dassi 33 Ind. Cas. 884 : 24 C.L.J. 363 : 44 C. 555 : 22 C.W.N. 89. All that this Court did in that case was that it refused to interfere with a decision in which the lower Appellate Court had not drawn the inference of fixity of rent from facts somewhat similar. It cannot be said that the facts in that case were exactly the same as here. A final Court of fact is competent to draw the necessary inference, provided it does not feel bound to take the presumption into account.

(3.) That is exactly the way in which the learned Judge has dealt with the matter, and the appellant's contention that the learned Judge has relied upon the presumption is not well- founded.