STHIRA HARI BHATTACHARJEE Vs. SASADHAR KARMAKAR

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for rent. The plaintiff claims rent at the rate of Rs. 16 a year. The defence is that the jama is Rs. 5-2-5 gandas. In the trial Court the suit was decreed. The lower appellate Court held that the presumption of correctness of the Record-of- Rights, which is in favour of the plaintiff, had been rebutted and decreed the suit at the rate admitted by the defendants. The plaintiff appeals. The point in this appeal is whether the lower appellate Court was justified in holding that the presumption of correctness of the Record-of- Rights had been fully rebutted. In coming to his decision the learned Subordinate Judge has relied on a cess-return Ex. 4. It appears that this was filed by the plaintiff as there was an issue whether he got his name registered and lodged cess-return. In Ex. 4 the rate of rent mentioned is Rs. 5-2 5 gandas. The learned Subordinate Judge thinks that under Section 20, Clause (b), Cess Act, the plaintiff is precluded for claiming rent at a higher rate. Under the Cess Act, returns are filed only at certain times in compliance with notices served by the Collectorate. Ex. 4 was filed in 1912. But in 1917 the plaintiff brought a suit for rent claiming rent at the rate of Rs. 16 and obtained an ex parte decree. Subsequently, the defendants paid up the entire decretal amount and filed a petition alleging full satisfaction. It is contended that this is not res judicata. But that is not the point. The result of the rent suit of 1917 shows that the rent which was mentioned in the previous cess-return had been varied and that for the period in suit the rate of rent was Rs. 16 as now claimed by the plaintiff. Then comes the Record-of-Rights which was finally published in 1918. In this state of the evidence it is wrong to say that the presumption of correctness of the Record-of-Rights has been fully rebutted.

(2.) The result is that the decree of the lower appellate Court is set aside and that of the trial Court restored with costs in all Courts. Cammiade, J.

(3.) I agree.