PITAMBARNATH Vs. BHAIRAB CHANDRA SINHA

JUDGEMENT

(1.) This is an appeal from the decision of the District Judge of Tipperah reversing the decision of the Munsif, Fourth Court at Comilla. The plaintiffs who are the appellants before me brought a suit for declaration that their raiyati jama had been wrongly recorded in the Settlement Record of Rights as in ordinary raiyati holding instead of as a raiyati holding at fixed rent.

(2.) The main point urged in this appeal is that the lower Appellate Court was wrong in law in stating what it was necessary for the plaintiffs to prove in order to establish the presumption that the holding had been held at a rent which had not been changed from the time of the Permanent Settlement. The lower Appellate Court held that having regard to the provisions of Section 115 of the Bengal Tenancy Act the presumption for which Clause (2) of Section 50 provides did not arise in the present case. He then went on to consider whether the ordinary presumption arose from the facts proved and decided against the plaintiffs.

(3.) It is contended in the first place that the lower Appellate Court was wrong in holding that the presumption under Section 50 could not be applied. On this point I am in entire agreement with the learned District Judge that the words of Section 115 appear quite plain and that the later decisions of this Court support his view that the presumption under Section 50 cannot apply to a tenancy when the particulars mentioned in Section 102(b) have been recorded under Chapter X if an attempt is made to raise it in a regular suit and not in a proceeding under Section 105 or Section 106 of the Act. This seems clear from the decision of two Benches of this Court in Bamandas Bidyasagar V/s. Sadhu Majhi 64 Ind. Cas. 415 : 26 C.W.N. 945 and Prasonna Kumar Sen V/s. Durga Charan Chakravarti 70 Ind. Cas. 537 : 26 C.W.N. 947 : 36 C.L.J. 291 : (1922) A.I.R. (C) 146 : 49 C. 919.