Deo Narayan, Singh and Others vs Dwarka, Prasad Singh and Others

Dawson-Miller, C.J.—These appeals; arise out of a number of suits instituted by the proprietors of Mahal Jaipur against their tenants claiming arrears of rent and enhancement of future rent u/s 30-B, Ben. Ten. Act. No dispute arises in these appeals as to the claim for recovery of arrears of rent. Both the trial Court and the Subordinate Judge on appeal however, have found that the proprietors are entitled in each of the cases to an enhancement of rent on the grounds specified in Section 30-B, Ben. Ten. Act.

On appeal before us the decision has been questioned not on the ground that good reasons have not been shown for enhancing the rent, but on the ground that the judgment of the lower appellate Court as well as that of the trial Court is based upon inadmissible evidence. The matter stands thus; It is not disputed that since the year 1857 the same rate of rent has been paid by the tenants as that which prevails at the present day. Prima facie therefore u/s 50, Ben. Ten. Act, the tenants having proved that they have been paying at the same rate of rent for over 20 years, a presumption arises in their favour that they have been paying that rent since the date of the Permanent Settlement and unless the presumption is rebutted the landlords are not entitled to enhancement. Further Record-of-Rights finally published in 1911 record the tenants as having sharah moin interest in the laud.

Therefore again a presumption arises in their favour which it is necessary for the landlords to rebut before they can establish their claim to enhancement of rent. The landlords contend, however, that although the same rate of rent has been paid for a number of years, in fact there was an enhancement of rent in the year 1857 on at all events between the years 1837 and 1861; and in support of this contention two rubkars, prepared by the Collector under Settlement Regulation 7 of 1822, have been produced and proved in evidence. The first was that of Mr. Sandes prepared in 1837 in which much information relating to this mahal is given and the rents payable for each class of land throughout the mahal are set out in detail. The second is that of Mr. Swinton of 1861 in which again the same process was followed and a comparison of the rents payable in 1837 with those payable in 1861 shows that in each case there was an enhancement of rent between those dates. If that evidence is accepted then there is an end of the case, for the presumption arising either under the Record-of-Rights or u/s 50, Ben. Ten. Act, has been rebutted.

Although it is not disputed that the rubkars prepared by the settlement authorities in those years are evidence of the matters decided and recorded, in so far as they were authorized to record them, still it is contended that the other evidence in the case which was relied upon by the learned Subordinate Judge was inadmissible. First there is a deposition made by the patwari of the village in the course of the enquiry in 1861. This evidence apparently shows that the rents had boon enhanced in the year 1857 or thereabouts, the reason for a fresh enquiry and a fresh settlement in 1861 being that the previous proprietor had turned rebel and his lands were confiscated after the Mutiny. It was apparently shown by Hazarilal who gave evidence in 1861 that the rents had been enhanced. Again the learned Subordinate Judge took into account the jamabandis which formed a part of the record of the proceedings of 1861 and which showed an enhancement of rent between 1837 and 1861 and these, it is contended, were not admissible evidence under the Evidence Act.

With regard to the statement of Hazari Lal I am not satisfied that that was admissible as evidence in this case. It does not seem to me to come within any of the provisions of Section 32, Evidence Act. Therefore I think that the learned Judge was wrong in accepting it either as substantive evidence or even corroborative evidence of facts which have been proved otherwise. With regard to the jamabandis I think that these were clearly admissible u/s 34, Evidence Act, being in the nature of books of account, as corroborative evidence, but not as in themselves substantive evidence. If therefore the rubkars of 1837 and 1861 are substantive evidence of the facts there recorded, then clearly the learned Subordinate Judge was entitled to take into account the jamabandis as corroborative evidence of the rubakars. It is conceded that the rubkars are evidence of the facts recorded therein if the Collector was authorized to record them, but it is not admitted that it was any part of his duty to record the rates of rent.

Regulation 7 of 1882 declared the principle according to which the settlement of land revenue in Cuttack, Pataspur and its dependencies was to be made and set forth the powers and duties of the revenue officers who for the purposes of the settlement had to ascertain and record the rights and obligations of the various classes of persons having an interest in the land. Under the ninth section a record was to be formed of the rates per bigha of each description of laud or kind of produce demandable from the resident cultivators not claiming any transferable property in the soil, and the respective shares of the sadar malguzar, or other manager, and the cultivator in lands cultivated under karlut, batai or similar engagements. The information collected on these and other points was to be so arranged and recorded as to admit of an immediate reference thereafter by the Courts of Judicature, it being understood and declared that all decisions on the demands of the zamindars should thereafter be regulated by the rates of rent and modes of payment avowed and ascertained at the settlement and recorded in the Collector''s proceedings. It seems clear from this Regulation (6 of 1822) that the recording of the rates of rent which appear in the rubkars of the Collectors was a duty imposed upon them by the regulation itself and the matters so recorded are evidence which the Court is entitled to take into consideration.

The only ground, therefore, upon which we can be asked to differ from the decision of the learned Judge in so far as this question of evidence is concerned is that he took into consideration the evidence of Hazarilal. Sitting as a Court of appeal, even if evidence was improperly admitted, we ought not to remand the case for further hearing if we should be of opinion that the admission of that evidence could not have affected the decision come to by the lower appellate Court. In my opinion the admission of the evidence of Hazarilal had nothing whatever to do with the decision at which the learned Judge arrived.

It is only necessary to read his judgment to see that he was completely satisfied upon the rubkar in question and upon the facts recorded as to the rates of rent in these two documents that it was abundantly shown that there had been an enhancement of rent between 1837 and 1861. He says:

These were the rates of rent in respect of all classes of land in mahal Jalpura and I do not think that there can be any better evidence of enhancement in the circumstances of the case than this rubkar, Ex. 2. It is the rubkar of a competent revenue Court acting according to the provisions of Regn. 7 of 1822 and it contains its findings and orders. It is a good piece of independent evidence and no corroborative evidence is needed to lend support to it.

Having arrived at that conclusion the learned Judge nevertheless goes on and says that if it required any support then there are the jamabandis and this statement of the patwaris. But it is obvious from his judgment that his decision was not in effect influenced by the evidence of Hazarilal nor indeed by the jamabandis and that without them he would have been perfectly satisfied on the evidence of the rubkars alone that there was an enhancement of rent.

That disposes of the whole case except one point which was raised by Mr. Sen, namely, that in Section 50 the words "at the time of the Permanent Settlement" related not to the date of the Permanent Settlement in 1793, but to the time when a settlement was actually made with the proprietors, in this case in the year 1861 and, therefore, if the tenants can show that they have held their lands at a fixed rate of rent from the year 1861 then they are entitled to continue holding them at that rate and the landlord is not entitled to any enhancement. The result of such a construction of the Act would have the effect that if, hereafter, either because the proprietor had defaulted in payment of revenue or for any other cause, his land passed out of his possession into the hands of the Government and there was fresh settlement in perpetuity with another proprietor, then all the rents payable by the tenants at the time when the fresh settlement was made would become by reason of this section rent at fixed rate.

I cannot believe that that was the intention of the legislature and the reference in the section to the time of the Permanent Settlement in my opinion must refer to the date upon which the Permanent Settlement Regulation I of 1793 was passed. In support of this view reference may be made to the definition in Section 3, Sub-section (12) of the Act which says:

Permanent Settlement means the permanent settlement of Bengal, Bihar and Orissa made in the year 1793;

and when the Act speaks about the time of the Permanent Settlement it seems to me that is merely another way of referring to the year 1793.

I think, therefore, that on both these points the appellants must fail and these appeals should be dismissed with costs.

Mullick, J.

I agree.