RAJ NANDINI DEBI Vs. BHUSAN CHANDRA SAR

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs in a suit for ejectment of the defendants under Section 25 and Section 155, Ben. Ten. Act. One of the defences to the action was that the defendants were not occupancy raiyats but raiyats holding at fixed rate. The trial Court accepted this defence and dismissed the suit. On appeal the learned Judge has found that the defendants are occupancy raiyats, but the Judge dismissed the suit on the ground that it was barred by limitation under Art. 32, Lim. Act, Hence the present appeal by the plaintiffs.

(2.) THE Advocate for the appellants contends that the view taken by the learned Judge on the question of limitation is wrong, inasmuch as Ex. 7 would go to show that the "misuse" took place within two years before the institution of the suit. It is not necessary to express any opinion on this question inasmuch as it appears to me that the learned Judge's finding on the question of the status of the defendants is wrong. THE Judge has held that the defendants failed to prove uniform payment of rent within 20 years preceding the institution of the present suit. It appears however from the Dakhilas which were granted by the plaintiffs to the defendants that the difference between the existing rent and the previous rent is due to abatement of a portion of the rent on account of a diminution in the area of the holding by acquisition under the Land Acquisition Act. THE abatement given is no doubt not proportionate to the area acquired. But under Section 52, Clauses (4), Ben. Ten. Act, the amount abated from the rent shall bear the same proportion to the rent previously payable as the diminution of the total yearly value of the tenure or holding bears to the previous total yearly value thereof. THEre cannot be any doubt, therefore, that the difference between the existing rent and the previous rent is due only to abatement of rent on account of acquisition and not due to any variation in the rent or rate of rent. THE tenant therefore is entitled to the benefit of the presumption under Section 50, Ben. Ten. Act. THEre being no evidence on the side of the plaintiffs to rebut the presumption, the conclusion is irresistible that the defendants are raiyats holding at fixed rate. THE plaintiffs are, therefore, not entitled to get any relief in the suit. THE appeal is accordingly dismissed with costs. Leave to appeal under Section 15, Letters Patent, has been asked for in this case and is refused.