Kameshwar Singh Bahadur vs Bacha Koiri and Another

Dhavle, J.—This appeal arises out of a suit apparently brought u/s 104-H, Bengal Tenancy Act, for a declaration in favour of the plaintiff landlord that the tenants who have been entered in the recent Record of Rights as sharah muayyan tenants have no more than occupancy rights. Both the lower Courts have concurrently found that the entry in the Record of Rights in favour of the tenants has not been rebutted.

The learned Advocate for the appellant has referred to Section 115, Bengal Tenancy Act, and contended that alter the final publication of the Record of Rights, it was not open to the lower Courts to act as they have done on the presumption u/s 50, Bengal Tenancy Act that the defendants, because they and their pre-decessors-in-interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the institution of the suit, have held at that rent or rate from the time of the Permanent Settlement. Section 115 does in terms provide that the presumption u/s 50 shall not apply to a tenancy after the particulars mentioned in Section 102(b) relating to it have been recorded under Chap. X. But it is obvious that in such a case it would not be necessary for the tenant to go back to Section 50 of the Act so long as the rent entry in the Record of Rights stands and carries the statutory presumption of correctness. It was pointed out in Dwarka Nath Banerji Vs. Rash Behari Guha and Others, , a case referred to by the learned Advocate for the respondents, that when the entry in the Record of Rights in favour of the tenant is challenged, it ought to be open to them--if Section 115 is properly understood--to support its correctness by proof including the presumption laid down in Sub-section 2, Section 50. It is obviously impossible to leave the tenants without both the presumption u/s 50 (2) and the presumption u/s 103-B (3) of the Act in a suit like the present. As was, moreover, observed in Prasanna Kumar Sen Vs. Durga Charan Chakrabarti, , the word "thereafter" in Section 115, Bengal Tenancy Act, clearly signifies:

after the particulars have been finally recorded after recourse to all the provisions contained in Chap. X for the attainment of finality in this respect.

Mr. Rameshwar Misra has drawn attention to several decisions of this Court and of the Calcutta High Court, but it is not necessary to refer to them in detail because they relate to cases where the tenant-defendant endeavoured to support his case by the presumption u/s 50, Sub-section 2 of the Act contrary to the Record of Rights which was not in his favour. The position in the present case is materially different, and no authority of this or any other High Court has been brought to my notice in support of the appellant''s contention that the entry in the Record of Rights which is in the tenant''s favour but is assailed by the landlord, cannot, by reason of Section 115 be supported by the tenant by proving facts on which the presumption laid down in Section 50 (2) will arise. It is, moreover, to, be noted that the question has arisen in a very special suit under Chap. X of the Act. Mr. Rameshar Misra has also urged that on the facts before the lower Courts the holding in suit should not have been found to be a holding of a sharah muayyan character. Three papers were produced on behalf of the appellant to show variations in the area and rent of the holding : a hastbood jamabandi of 1285 F.S., another jamabanai of 1326 F.S., and a wasilbaki of 1285 F.S. These papers do show variations in the area and rent, but have not been believed by the final Court of fact. They must, therefore, be left out of account for the purpose of this second appeal, though this must not be taken to imply any disagreement with the observations of the learned Additional District Judge below regarding the failure of the appellant to support such "unilateral" papers by the production of his counterfoil receipt books and siahas.

The counterfoil receipt books in particular might have displaced the case of the tenants who only had the rent receipts to rely upon. The inference from these rent receipts regarding the identity of the holding is not erroneous as a matter of law. for a long time very much in excess of 20 years, the area appears from the receipts to have been 18 bighas 6 cottas and the rent Rs. 13-1-1 1/2 without cess. An area of over three bighas was diluviated by the river, and the holding was thus reduced to 15 bighas 13 dhurs as found at the survey and settlement; and it was in accordance with this reduced area that a fresh settlement was made. Mr. Rameshwar Misra has suggested that in view of the statement in para. 6 of the written statement of the defendants that the area that was diluviated at one time is recorded in the recent survey papers as gairmazrua, it ought to have been held that the identity of the old holding is lost. I am unable to accept this contention. The diluvion did not affect the rights of the tenants-defendants in respect of such portion of the old holding as still remained available. The identity of the holding, its old area and present area, and the rent are, moreover, all questions of fact; and it does not seem to me that in pronouncing upon them the lower Appellate Court has committed any error of law so as to warrant any interference by this Court. The appeal fails and is dismissed with costs.