Achaimbit Mahata vs Raj Kumar Tekait

Scroope, J.—The suits out of which these three appeals arise were brought for a declaration that the plaintiffs held permanent and heritable tenures under the defendant at rents fixed in perpetuity. In the finally published Record-of-Rights the plaintiff in one of the suits (suit No. 86) has been shown as a tenure holder and the plaintiffs in the other two suits have been recorded as occupancy raiyats.

In the three cases the rents were ''recorded as liable to be enhanced. It was originally a single tenancy held by the ancestor of the plaintiffs among whom it was divided according to their shares in the family property. The Subordinate Judge of Purulia decreed the suits. Although the defendant appealed to the District Judge against the entire decrees the appeals were not pressed against the finding of the lower Court that the plaintiffs are not raiyats but permanent tenure holders. The appeals were pressed against the finding that the rents were fixed and the learned District Judge of Manbhum-Sambalpur allowed the appeals on this point holding that the presumption attached to the Record-of-Rights has not been rebutted and that the rents are liable to enhancement.

The plaintiffs filed rent receipts showing that they have been paying a uniform rent which has not been changed since at least 1274 B.S., and the first contention advanced in appeal to this Court was that this raised a presumption in favour of fixity of rent and that the learned District Judge was wrong in applying Clause (5), Section 51-A, Chhota Nagpur Tenancy Acts, as these were in fact suits challenging the Record-of-Rights. The answer to this contention is that a suit for that purpose has to be brought u/s 87, Chhota Nagpur Tenancy Act, in the Court of the Revenue Officer and admittedly also such a suit was barred at the time when these suits were instituted.

The case of the Secy, of State v. Rajimuddi [1899] 26 Cal. 617 is relied on by the learned advocate in this connexion and also in support of his second contention that there is a natural presumption in favour of exitity of rent arising from the fact of a uniform rate for over 50 years and that this would override Clause (5), Section 51-A, Chhota Nagpur Tenancy Act. He also relies on Gulab Miser v. Kumar Kalanand Singh [1910] 12 Cri.L.J. 107 and Monmotha Nath Kar Vs. Probodh Chandra Ratarhi, . It is now settled law that when a Record-of-Rights has been finally published under the Bengal Tenancy Act, the presumption u/s 115 does not apply: see Pirthichan Lal Chowdhary v. Basarat Ali [1910] 37 Cal. 30 and Prasanna Kumar Sen Vs. Durga Charan Chakrabarti, , and two cases of this Court, Kesho Prasad v. Ramjas Pande AIR 1923 Pat. 324 and Gobind Lal v. Ram Saran Lal AIR 1921 Pat. 435. The authority of the two cases strongly relied on by the learned advocate for the appellant, namely, the Sean, of State v. Kajimuddi [1899] 26 Cal. 617 and Radha Kishor Manikya v. Umed Ali 12 C.W.N. 904 has not been accepted in these later cases which accordingly must be held to be no longer good law. These cases are, however, under the Bengal Tenancy Act, and the learned advocate was on much j-stronger ground when he contended [that the entry "occupancy raiyat with rent subject to enhancement" in the two cases where plaintiffs were so entered was anyhow not a particular mentioned in Section 87(b), Chhota Nagpur Tenancy Act and did not, therefore, attract the operation of Section 51-A(5) of that Act. In my opinion this contention is well founded as a comparison of the sections will show:

Section 81(b), Chhota Nagpur Tenancy Act (Bengal Act 6 of 1908):

The class to which each tenant belongs, tyhat is to say, whether he is a tenure holder, Mandari Khunt Kattidar, settled raiyat, occupancy raiyat, non-occupancy raiyat, raiyat having khunt katti rights, under-raiyat, and if he is a tenure holder whether he is a permanent tenure holder or not, and whether his rent is liable to enhancement during the continuance of his tenure.

Section 102(b), Ben. Ten. Act 8 of 1885:

The class to which each tenant belongs, that is so say, whether he is tenure holder, raiyat holding at fixed rates, settled raiystt, occupancy raiyat, non-occupancy raiyat or under-raiyat and, if he is a tenure holder, whether he is permanent tenure holder or not, and whether his rent is liable to enhancement during the continuance of his tenure.

Section 81(b) clearly contemplates such a particular in the case of a tenure but not in the case of an occupancy holding. It was sought to get over the difficulty by the following argument: If the entry was merely "occupancy holding" Section 51-A(5) would apply on the authority of the Bengal cases already cited; a fortiori Section 51-A(5) applies when the entry is "occupancy holding rent liable to enhancement" this last being only "other particulars" of the kind referred to in the opening words of Section 81. Section 102(b), Ben. Ten. Act, mentions raiyats holding at fixed rates whereas this class of raiyats is not mentioned at all in the corresponding section of the Chhota Nagpur Tenancy Act in the four districts to which the Chhota Nagpur Tenancy Act first applied, the Mundari Khunt Kattidar and raiyats having khunt katti rights take the place of raiyats holding at fixed rates in the Bengal Tenancy Act, so if we find in a Record-of-Rights finally published for these areas under the Chhota Nagpur Tenancy Act, a person entered as an occupancy raiyat and not as a Mundari Khunt Kattidar or raiyat having khunt katti right the presumption is just as strong that he is not a raiyat holding at fixed rates as it is in the case case of such an entry under the Bengal Tenancy Act.

The case is different with Manbhum where these cases come from and which appoximates more to Bengal conditions and the Act was extended in 1910 to that district. Section 4, Act 10 of 1859, which was in force in Manbhum up to 1910, laid down that on proof in a suit under that Act that a raiyat''s rent had not been changed for a period of twenty years before the commencement of the Act it should be presumed until the contrary was shown that such rent had remained unchanged since the permanent settlement. Hence it was necessary to make special provision for raiyats holding at fixed rents in Manbhum, when the Act was extended and accordingly the Act was amended by a new Section 51-A.

But strangely enough no corresponding amendment was made in Section 81(b). Thus in a Record-of-Rights for Manbhum, whence these three cases come, the entry "occupancy holding" alone carries us no further as regards the question of enhancibility as it is not contrasted with raiyat holding at fixed rates as it h in Bengal; in fact the contrast between a "raiyat holding at fixed rates" and an "occupancy raiyat," which ought to be the foundation for the application of Section 115, Ben. Ten. Act, does: not exist at all here. Enhancibility is: an ordinary incident of an occupancy holding, yet there is nothing incompatible between the nature of an occupancy holding and fixity of rent under the Chhota Nagpur Tenancy Act as it stands at present for Manbhum. Hence this method of meeting the contention fails, and I do not see any answer to it. In my opinion therefore Section 51-A(5) does not apply to the two cases in which this entry occurs. Another aspect of the matter is this: the entries now in question that the rents of these occupancy holdings are liable to enhancement are certainly unusual, as enhancibility of rent under certain statutory conditions is, as I have already indicated, a most ordinary incident of an occupancy holding, and the entries as to enhancibility are clearly pure surplusage. What probably occurred was that all these tenancies were originally shown in the draft Record-of-Rights as tenures with rent liable to enhancement, and tenure holder was at a later state altered to occupancy raiyat without removing the words "rent liable to enhancement" which are not in the case of occupancy raiyats appropriate to Section 51(b).

However, this is only surmise, but the point I wish to emphasize is that in these particular cases the words "occupancy raiyat" do not carry the weight they would in a record framed under the Bengal Tenancy Act or in a record for one of the four districts of Ranchi, Hazaribagh, Palamau or Singhbhum, and the entry of the ordinary incident of enhancibility makes the case no stronger. Holding as I do, that Section 51-A(5), Chhota Nagpur Tenancy Act, does not apply to the case, the question as to fixity of rents has to be decided on the evidence. Admittedly there has been uniform payment of rent for more than fifty years and Section 51-A(5) not applying, this is sufficient to raise a natural presumption of fixity of rent in favour of the appellants. The landlord twice in 1891 and 1900 tried to enhance the rents by suit and failed; the judgment of the appellate Court, Ex. 3, shows that it was there found that the present plaintiffs were tenure holders and held on fixed rent. That judgment is clearly a very strong piece of evidence in plaintiff''s favour though it is not res judicata as apparently the enhancement suits were finally dismissed because notice was not properly served and this being the position of the evidence, I would hold that the presumption of correctness attaching to the Record-of-Rights is adequately rebutted and that the plaintiffs in these two cases are entitled to the declarations sought.

There remains the third case. Now in this case Section 51-A(5) applies, as the plaintiffs are recorded as tenure holders; admittedly the three holdings in. the suit are portions of one parent tenure, and it is obvious that this cannot now be represented by one tenure and two occupancy holdings. Clearly there is inconsistency in the record; it is palpably wrong in this particular and it is common ground also, as I stated'' above, that the holdings are tenures. This considerably diminishes the value of the record and is a point which the learned District Judge has overlooked. It would be equally inconsistent to have two of the holdings into which the parent tenure is now divided held on fixed rents and the third on a, rent liable to enhancement.

Clearly the incidents of the holdings are the same in each case, and having regard to the findings already arrived at in respect of the two cases, to the admitted payment at uniform rates for more than fifty years, to the judgment, Ex. 3, and the manifest incorrectness of the Record-of-Rights as regards the nature of the holdings in. suit, I am of opinion that the plaintiffs in this case also have rebutted the presumption and are entitle 1 to the relief sought. I would therefore restore the decision of the learned Subordinate Judge and decree these three appeals with costs throughout.

Adami, J.

I agree.