PIRTHICHAND LAL CHOWDHRY Vs. BASARAT ALI

JUDGEMENT

(1.) In this case the record-of-rights under Chapter X of the Bengal Tenancy Act was finally published on the 18 February 1907 and the defendant was recorded in the khatian as a mere occupancy raiyat. On the 8 of April following, the landlord made an application for settlement of rent under Section 105 of the Bengal Tenancy Act. The defendant pleaded that he was a raiyat, at a fixed rent, which was not liable to enhancement. The Settlement Officer overruled the plea of the tenant and enhanced his rent by 1 1/2 annas in the rupee. On appeal by the tenant the Special Judge held that as he proved payment of rent at a uniform rate for more than twenty years, he was entitled to the benefit of the presumption under Section 50 of the Bengal Tenancy Act, and that presumption not having been rebutted his rent was not liable to enhancement. The landlord appealed to this Court, and it was contended on his behalf that as the status of the tenant had been finally published under Section 102, Clause (6), and there had been no suit under Section 106, the provisions of Section 115 of the Bengal Tenancy Act barred the presumption under Section 50. As there was a conflict between the decision of Mr. Justice Brett in Ram Sewak Chaudhuri V/s. Mohant Bansi Das Second Appeal No. 520 of 1907 decided on the 24 March 1909 and that of Mr. Justice Lal Mohan Doss in Maharaja Radha Kishore Manikya Bahadur V/s. Umed Ali (1908) 12 C.W.N. 904, the following question was referred for the decision of the Full Bench "whether when an application is made under Section 105 of the Bengal Tenancy Act for settlement of rent after the final publication of the record-of-rights, the tenant is entitled in view of the provisions of Section 115 of the Bengal Tenancy Act to the benefit of the presumption under Section 50." A reference was also made to the case of the Secretary of State for India in Council V/s. Kajimuddi (1899) I.L.R. 26 Calc. 617 as supporting the view of Mr. Justice Doss.

(2.) Chapter X of the Bengal Tenancy Act has undergone several amendments, and it cannot be said that the successive amendments have made the law clearer of comprehension or easier of practical application. The chief difficulty in answering the question referred arises from the fact that Section 115 has remained the same as it was under the original Act VIII of 1885, while the previous sections of the Chapter have undergone repeated and varied changes. Reading the Chapter as it stood before amendment by Bengal Act III of 1898, the Revenue Officer was under Section 103 to ascertain and record the particulars required by Section 102, and when so desired by the landlord or the tenant make a settlement of a fair and equitable rent under Section 104, Clause 2. When he had completed his record under the previous section, he was under Section 105 to publish a draft record for a month and receive and consider any objection to any entry in the record: under Section 106 he was also to hear and decide any disputes regarding any entry in or omission from the record, and then finally frame the record and publish it locally, such publication being conclusive evidence that the record had been duly made under the Chapter. The parties, therefore, had opportunities of watching and objecting to the proceedings (1) by objections under Section 105, which were decided summarily and subject to an appeal to the Special Judge, (2) by disputes under Section 106 which were subject to an appeal to the Special Judge and a second appeal to the High Court, except in the case of rents settled under Clause 2 of Section 104. Under Section 109 only undisputed entries were presumed to be correct, and finally Section 115 provided that the presumption under Section 50 shall not thereafter apply. Under the law then as it stood before Bengal Act III of 1898, the tenant would be entitled to the benefit of the presumption under Section 50 in a proceeding under Section 105 or 106. Under the amending Act of 1898 the old Section 105 was altered into Section 103A, which provided for the publication of the draft record and the receiving and consideration of objections to entries in or omissions from the record, and after the disposal of such objections the final framing of the record and final publication thereof, such publication being conclusive evidence that the record had been duly made under the Chapter. Section 103B provided that a certificate by the Revenue Officer that the record had been published under Chapter X would be conclusive evidence of such publication, and every entry in a record-of-rights should be presumed to be correct, until the contrary is proved.

(3.) The changes, therefore, were (i) that objections not only as to entries but also as to omissions from the record might be considered under Section 103A, (ii) that the final publication would follow the disposal of the objections as to entries and omissions, and need not wait for the decision of disputes under Section 106, which are for the first time called suits, and required to be initiated by plaints upon stamp-paper and to be filed within two months from the date of the certificate of final publication. Section 105 provided for the settlement of a fair and equitable rent in respect of the land held by the tenant: Clause 4 of this section provided that the existing rent was to be presumed to be fair and equitable, and the rules laid down in the Act for the guidance of Civil Courts in increasing or reducing rents must be followed. The same time (two months) was allowed for a suit under Section 106 or an application for settlement under Section 105. Section 107 provided that the decision of the Settlement Officer in all proceedings for the settlement of rents and all proceedings under Section 106 should have the force and effect of a decree between the parties, and should be finally subject to a revision under Section 108 or appeal under Section 109A, and further directed that a note of all rents settled and of all decisions of disputes should be made in the record-of-rights finally published under Section 103A, and such note considered a part of the record. The wording of Section 115 remained the same as before.