PRATAP MANDAL Vs. SURPAT SINHA

JUDGEMENT

(1.) This appeal arises out of a suit under Section 104-H, Bengal Tenancy Act, wherein the plaintiff prayed for a declaration that he was a permanent tenure- holder holding at a fixed rent of Rs. 41-12-0. In the Record of Rights the status of the plaintiff was recorded as that of a permanent tenant holding at a rent which was not fixed (istemrari lelchin mukarrari nahin).

(2.) The lower Appellate Court has found that rent for this tenure has been paid at an unvarying rate for 60 years before the suit, and that there has been no change in the area actually occupied by the tenant. Applying the presumption mentioned in Section 50, Bengal Tenancy Act, he found that the plaintiff was tenure-bolder at a fixed rent, and decreed the suit. A second appeal was preferred which was heard by a Single Judge of this Court who held that the provisions of Section 115, Bengal Tenancy Act, barred the application of the presumption mentioned in Section 50 of the Act after the Record of Rights had been finally published under s, 103-A. He, therefore, reversed the decree of the Subordinate Judge; but he gave leave to the plaintiff to appeal from his decision under Clause 10, Letters Patent. The question for, decision is merely whether in a suit under Section 104-H, Bengal Tenancy Act, a party can claim the benefit of the presumption mentioned in Section 50 of the Act. In Pirthichand Lal Chowdhry V/s. Basarat Ali 37 C 30 : 3 Ind. Cas. 449 : 10 CLJ 343 : 13 CWN 1149 (FB) a Full Bench of the Calcutta High Court held that in proceedings under Section 105. Bengal Tenancy Act, a party could claim the benefit of the presumption under Section 50 although final publication had taken place because it could not be held that the particulars mentioned in Section 115 had been completely recorded so long as any dispute remained pending which would immediately affect the record which was being prepared. That decision has been accepted in this Court in Gobind Lal V/s. Ramsaran Lal 2 PLT 642 : 68 Ind. Cas. 433 : AIR 1921 Pat. 435 and in Ramsaran Mahton V/s. Aradut Hussain 6 PLT 221 : 80 Ind. Cas. 926 : AIR 1925 Pat. 181, though the decisions in those cases were not actually based upon the rule laid down by the Calcutta High Court. No instance has been cited before us in which a Bench of this Court has dissented from the view of the Calcutta High Court with regard to the applicability of the presumption under Section 50 in suits framed under Chap. 10, Bengal Tenancy Act, whether they are suits under Section 106 or under Section 104-H of the Act, Under Section 104J of the Act, the presumption of correctness attaching to the record of rent settled under Section 104 is expressly made subject to the provisions of Section 104-H; and under Sub-section (9), Section 104-H, the Court which passes final orders in a suit under this Section is required to notify the same to the Collector of the District. If it cannot be held that the particulars mentioned in Section 102(6), Bengal Tenancy Act, have been recorded so long as any suit is pending under Chap. 10 of the Act which might lead to amendment of the record under Section 107, it would also appear no finality has been given to a record prepared under Secs.103 and 104 of the Act so long as a suit under Section 104-H remains undecided. I, therefore, consider that the reasoning which formed the basis of the decision Pirthichand Lal Chowdhry's case 37 C 30 : 3 Ind. Cas. 449 : 10 CLJ 343 : 13 CWN 1149 (FB) must apply with equal force to suits under Section 104-H, Bengal Tenancy Act.

(3.) It is suggested on behalf of the respondents that this question was left open by the Calcutta High Court, because it was remarked that it was not necessary in the case before the Court to decide whether the presumption under Section 50 of the Act could be applied to suits of the nature of those mentioned in Section 111; but Section 111 merely prohibits for a certain period the institution of particular suits while the Record of Rights is under pre-partition. Prima facie it would appear that the provisions of Section 114 would apply to suits of that nature instituted after the bar provided by Section Ill has been removed, but it would not follow from this that the presumption would not apply to suits for which Chap. 10, Bengal Tenancy Act, expressly provides, such as those under Section 104-H, which are equivalent to applications under Section 105 and suits under Section 106, when settlement of land revenue is being made or rents are being settled under Section 112 of the Act. In the present case the learned Subordinate Judge has found that the plaintiff proved payment of rent at an unvarying rate for 60 years before the suit and he has not accepted the evidence by which the defendant sought to rebut the presumption which followed on this proof by the plaintiff of uniform payment. The Subordinate Judge, therefore, rightly decreed the plaintiff's suit unless some other grounds were made out for holding that the rent payable was something other than the rent which had been paid during that period. It is suggested on behalf of the respondent that there has been a large increase of area because the plaintiff says that he acquired 244 bighas and the area of the tenure has now been found to be 209 acres. It appears from the judgment of the learned Subordinate Judge that these two areas do not exactly correspond though it is not clear whether the area now held is in excess or something less. The plaintiff stated that the area which he held was 244 bighas and the learned Subordinate Judge thought that he had stated the area by guess, but he finds that it has not been proved that there has been any variation in the area held by the plaintiff, and in view of the manner in which the defendant conducted his defence he could hardly prove that rent was originally fixed at a rate of so much an acre. The learned Subordinate Judge was, therefore, right in holding that the defendants were not entitled to claim that additional rent should be assessed under Section 52(i)(a) of the Act.