K S BONNERJI Vs. MAHAMED FOIZ

JUDGEMENT

(1.) Appeals Nos. 1760, 1769, 1776 and 1778 of 1923 have abated and are dismissed with costs.

(2.) The other appeals arise out of proceedings under Section 105 of the Bengal Tenancy Act and the landlord is the appellant. The appeals are directed against a decision of the Special Judge of Tipperah which eon-firms a decision of the Assistant Settlement Officer of the same place.

(3.) Three points have been urged in these appeals. The first is that certain old papers of 1795, 1798 and 1800 which are Exs. Nos. 12 and 13, the originals of which were produced from the Tipperah Collectorate and which are said to show variations of rent in respect of the premises in suit, have not been given sufficient weight in the decisions of the Courts below. These papers are to few melani papers, and jama wasil bald papers. They were filed, it appears, under Regulation XLVIII of 1793 and they were filed in the Collectorate in 1795. It is urged that if proper attention is paid to these papers the variation of rent is established with regard to the tenancies in question and that, accordingly, there is no presumption in favour of the tenants under the provisions of Section 50 Sub-section (2) of the Bengal Tenancy Act. So far as this point is concerned both the Courts below have taken these papers into account and considered them for the purposes of the appeals. What the learned Judge, in the Court below says with regard to them in his judgment is that even, if they are accepted as accurately stating the variation at the time they were filed they cannot be regarded as a complete Record of Rights and as binding on the tenants so as to rebut the presumption in their favour created by the recent Record of Rights. The learned Judge further states that if they are accepted, a number of deductions and inference will have to be drawn which would not be just in the interest of the tenants to draw. We have before us a statement showing, so far as these appeals are concerned, the alleged variation of rent in respect of the different taluqs to which the tenancies relate and certainly it would appear from the perusal of the materials before us that the papers, show variation in rent so far as the taluqs in question are concerned. But in view of the fact that both the Courts below have taken them into consideration and held that they cannot be relied on to rebut the presumption raised in the tenants favour by the recent record, we do not think that there is any reason why we should put a different value upon them from what has been put by the Courts below, and I am not prepared to say that the learned Judge has fallen into any error in law in dealing with these documents. Accordingly we do not see any reason why we should not accept the evidentiary value which he has placed on them and to hold that so far as this point is concerned no valid ground for upsetting the judgment of the Special Judge has been made out.