Mohammad Yunus and Others vs Bansi Rai

Courtney-Terrell, C.J.—In this case the plaintiffs-appellants sued in the Munsiff''s Court for enhancement of rent of a portion of a plot bearing khata No. 145 which portion fell to their share by partition in 1914 and 1915.

The defence was that there could be no enhancement inasmuch as the holding was on sarahmoyan (fixed rent). The defendants relied upon an entry in the Record-of-Rights which they asserted showed that this khata number was recorded as sarahmoyan and they relied further on certain evidence that for a considerable period rent had actually been paid at a rate which had not during that period been varied. The plaintiffs also relied upon the entry in the Record-of-Rights and contended that it indicated that the rent with respect to this plot was kaimi and liable to enhancement. The plaintiffs contended that the defendants had failed to prove by their evidence that the land had been held at a fixed rate since the time of the permanent-settlement.

The Munsiff and the first Court of appeal found as a fact that the land in plot 145 was kaimi and liable to enhancement.

The defendants in their second appeal to the High Court relied upon the contention that the Courts below had failed to appreciate in its true light the entry in the Record-of-Rights and Sen, J., held that the appellants'' view was correct and reversed the judgments of the Courts below.

Now the issue between the parties was really one of fact upon which the judgment of the Munsiff and the first Court of appeal was final but we have examined the entry in the Record-of-Rights with a view to ascertaining whether the defendant''s contention that it had been misinterpreted by the lower Courts was right. It appears that the plots comprised in khata No. 145 originally formed one holding with another I plot bearing khata No. 12. These were separated by partition and in the survey entry which was made in 1911-12 against plot 12 is the entry that it is held at fixed rent. There is also the entry of the rent as follows:

Rupees 126 and annas 11 including cess and rent of khata No. 145 in the name of Bansi Raj.

Against khata No. 145 which is the subject of this dispute there is the entry "kaimi" and the further entry:

Rent included with that of khata No. 12 in the name of Decchan Rai and others.

It was argued that although the entry "kaimi" appeared against this plot number the word "kaimi" must clearly be a mistake because of the entry that the rent is included with khata No. 12. In our opinion this is not the correct interpretation. Taking the two entries against khatas Nos. 12 and 145 together it merely indicates that the rent of khata No. 145 is to be paid with the fixed rent of khata No. 12 and this is in no way inconsistent with the entry "kaimi" against khata, No. 145. Accordingly the presumption from the entry in the Record-of-Rights is that khata No. 145 is kaimi and we are bound by the view of the lower Courts that upon the evidence the defendants have failed to disturb this presumption. On the other hand, the lower appellate Court has upon evidence held that at the time of the permanent settlement the rent of the holding was not "fixed in perpetuity."

Therefore, the defendants wore not "raiyats holding at fixed rates" as defined in Section 4. Clause (3)(a), Ben. Ten. Act. There is therefore no room for raising a presumption u/s 50, Clause (2), by payment of the same amount of rent for a number of years and such a presumption is also not available to the defendants by reason of Section 115, Ben. Ten. Act, after the entry of kaimi was made in the Record-of-Rights. The defendants failed to prove that the rent of the holding in question was sarahmoyan or fixed in perpetuity, the onus whereof lay upon them.

We are, therefore, of opinion that this appeal should succeed, the judgment of the learned Judge in the first appeal in the Court below should be restored and the defendants should pay the costs of the second appeal and the appeal to this Court. The plaintiff''s suit is decreed with costs throughout.

Jwala Prasad, J.

I agree.