Nand Lal Chaure and Others vs Kesho Prasad Singh

Kulwant Sahay, J.—These 17 appeals arise out of as many suits brought by the plaintiff-respondent for enhancement of rent u/s 30(b) of the Bengal Tenancy Act on adjudication that the tenants, defendants, were occupancy-raiyats and not rniyats at fixed rents as recorded in the record-of-rights. The defence of the defendants was that their holdings were not occupancy holdings but that they were Sharahmoaian tenants or tenants holding at fixed rates. They further raised certain pleas objecting to the enchancement u/s 30(b), even if it be held by Court that they were occupancy tenants.

There were altogether 25 suits brought by the plaintiff, out of which four suits were dismissed on account of non-service of summons on the defendants. Pour other suits were decreed by the Munsif on a finding that the tenants in those suits wore occupancy tenants and that the plaintiff was entitled to enhancement of rent u/s 30(b) of the Bengal Tenancy Act. Those eight suits are not before us in these appeals and the present appeals relate to the remaining 17 suits in which the learned Munsif held that the tenants, defendants, were raiyats at fixed rates. On appeal by the plaintiff, the learned Subordinate Judge of Shahabad has reversed the decree of the Munsif, and has found that the defendants were occupancy tenants and that their rents are liable to enhancement u/s 30(b) of the Bengal Tenancy Act. Against the decrees in these suits the tenants, defendants, come in second appeal to this Court.

The learned Munsif in dealing with the issues as to whether the holdings in the suits are holdings at fixed rata or occupancy holdings, held that the survey records were in favour of the defendants. Ha found that although the jamabandis for the years 1246, 1248, 1267, 1268 and 1280 Fasli produced by the plaintiffs showed that the holdings of the defendants, have not continued uniform either in area, or in the amount of rent payable by., the defendants, yet from 1280 downwards and he has drawn the presumption raised in favour of the defendants by Clause 2 of Section 50 of the Bengal Tenancy Act. As regards the jamabandis produced by the plaintiff, the learned Munsif remarked that in order to be of any evidential value, they require full corroboration from independent source, and in this circumstance was wanting in the present case; but having regard to the fact that the Patwan examined by the plaintiff gave genealogies of the defendants which were not challenged by the defendants, and to the fact that the defendants did not make any specific allegation that their lands in 1246 or 1248 were not as entered in the jamabandis and the entries in those jamabandis were not specifically challenged, he held that the jamabandis could not be wholy discarded. He went in detail into the entries as regards each case, and he found that a large area of land went out of the tenant''s possession after 1248 Fasli; that the lands in the jamabandi of 1267 did not include any new lands which were not tenancy lands in 1246 or 1248. He thought that there might have been re-adjustment or re-distribution of lands by purchase, etc., but no new land came in, which was not in the jamabandi of 1248. He observed that it was not the plaintiff''s suggestion, nor was there any evidence to show that the 1248 jamabandi was incomplete, and he remarked that this fact had an important bearing in the present case as the mere fact that the area of the tenants'' lands in 1267, or in any other subsequent year was higher than the lands in 1248 jamabandi, does not establish the plaintiff''s case. He was of opinion that the plaintiff had to prove in addition, that the increased area are lands of new settlement not acquired by purchase from other tenants, and he placed the onus on the plaintiff to prove that the excess area was a result of new settlement as the khatian was in the defendants'' favour. Then as regards the bhaoli lands shown in the earlier jamabandis against the names of some ot the tenants, and the fact that while the bhaoli area in 1248 was 60 bighas, in 1268 it was reduced to 18 bighas he held that these facts did not warrant the conclusion that all the bhaoli lands were commuted to nagdi and the bhaoli lands of 1246 or 1248 or any subsequent year was continued to be held by the selfsame tenants in later years. The learned Munsif further held that mere alteration in area accompanied with alteration in land, as shown by jamabandi, proved nothing. He was of opinion that the plaintiff must prove increase in rent or in rates of rent and also that the previous bhaoli areas were, as a matter of fact, included in the later years'' holdings and that the lands were of new settlement. He then took up each case or each group of cases separately and he found that the plaintiff had failed to prove that the new lands were of new settlement. He was of opinion that it was possible that they were acquired by purchase. He further held that the jamabandzs show constant alterations in areas and rents but it was not shown that the old rent was enhanced, or that new lands were settled. He further held that identity of the lands in dispute with those in the jamabandis had not been established. Ho accordingly dismissed the 17 suits now in question.

On appeal, the learned Subordinate Judge was of opinion that the landlord had sufficiently rebutted the presumption raised by the entry in the record-of-rights and u/s 50(2) of the Bengal Tenancy Act by showing from his earlier jamabandts of 1246, 1248, 1267 and 1268 that in most of the oases the present nagdi holdings with the present jamas were new creations and in some oases there were conversions or commutations from bhaoli holdings He was also of opinion that the learned Munsif placed the onus on the plaintiff about matters which would be entirely within the special knowledge of the defendants themselves, for instance, as regards purchase of old raiyati lands, etc He held that the jamabandi of the earlier years, mentioned above, having rebutted the presumption arising in favour of the defendants, and the onus having been shifted upon the defendants to how that their present holdings were more up of other holdings acquired by them by purchase or other means, which were also held at uniform rent, the defendants had failed to discharge the onus, and that, therefore, it must be held that they were occupancy tenants and not tenants at fixed rents.

In second appeal it has been argued on behalf of the appellants that the learned Subordinate Judge bad not considered each case separately but has considered all the cases en bloc. Further, he has not considered the fact that the jamabandis were held by the Munsif not to have been proved according to law. Thirdly, that the presumption being in favour of the defendants, the learned Subordinate Judge has improperly thrown the onus upon them to prove new acquisitions by purchase or other means, or by commutation of bhaoli rents into nagdi rents. Now, although the learned Subordinate Judge was right in his view that once the plaintiff succeeded in showing that the holdings, as recorded in the record-of-rights, were not in existence in the condition in which they were so recorded, in the years 1246 or 1248 or 1267 or 1268 the onus shifted on the defendants to prove that their present holdings are made up of other holdings which also have borne uniform rental, yet it must be said that the learned Subordinate Judge has not properly considered the evidence adduced by the defendants. He merely observes that the onus was improperly thrown on the landlord about matters which would be only within the special knowledge of the tenant himself; but he does not consider whether the onus which was on the defendants bas been discharged by them by the evidence produced. Moreover, the learned Munsif considered each case or group of oases separately and dealt with the evidence relating to those cases or groups of cases. The learned Subordinate Judge has not dealt with each case or group of oases separately and I am not sure whether his attention was directed to the evidence adduced by the defendants as regards each case. Moreover, the learned Munsif observed that the plaintiff had failed to prove the identity of the lands in dispute with the lands in the jamabandis. The learned Subordinate Judge does not deal with this point. No doubt he refers to the genealogies deposed to by the plaintiff''s Patwari, but I am net sure whether by this he meant that the identity of the lands had been established. Having regard to these circumstances, I am of opinion that the appeals have not been properly dealt with by the learned Subordinate Judge. I would, therefore, set aside his decrees and remand the appeals to the Subordinate Judge for fresh hearing and disposal according to law. Costs will abide the result.

Das. J.

I agree.