Rashik Lal Sahu and Another vs Babu Surpat Singh and Another

Courtney-Terrell, C.J.—This Letters Patent appeal is brought by the defendant-appellant against a decision of Wort, J. sitting singly and arises out of a suit by the landlord for a declaration that an entry in the Record of Bights to the effect that the land held by the defendant is held rent free is erroneous and for assessment of a fair rent. The suit was dismissed by the trial Court and by the first appellate Court, but these decisions were reversed by Wort, J. who held that the landlord plaintiff was entitled to succeed.

The substantial point for our consideration is the effect to be given to the entry in the Record of Bights that the land is held rent free. Some difficulty has been felt by the Courts by reason of a decision of their Lordships of the Privy Council in Jagdeo Narain Singh v. Baldeo Singh, AIR 1922 PC 272 and that decision has been interpreted and discussed in subsequent decisions of this Court. The first decision of importance was given in Stonewigg v. Kameshwar Narayan Singh AIR 1923 Pat 340. The decision of the Privy Council had given rise to the belief that it laid down the'' proposition that the presumption of the correctness of the entry in the Record of Bights was rebutted if the landlord could show that the land in respect of which the suit was brought fell within the ambit of his ''zamindari''. Now the word ''zamindari'' has been somewhat loosely used. It may be used in the strict sense to denote the land in respect of which the landlord has a proprietary right and in respect of which he is assessed to revenue. It may also be used in a wider and looser sense to mean the land over which he has proprietary rights as to part of which he is assessed to revenue and as to the remainder of which he is not assessed to revenue but may have the duty of collecting the cess, and in this wider sense it may be that the ''zamindari'' includes both land in respect of which'' the landlord receives rent and which is assessed to revenue and land in respect of which no rent is paid or in respect of which the tenant is not liable to pay rent. I think that some of the subsequent confusion has been due to the fact that the term has been used, sometimes in the one-sense and sometimes in the other.

In the Privy Council decision, as was pointed out by Das, J. in Stonewigg v. Kameshwar Narayan Singh AIR 1923 Pat 340, their Lordships, when the decision is examined, were dealing with a case in which it was shown by evidence that there was no rent free land within the landlord''s zamindari and that the land in suit was within the zamindari; and as a matter of evidence in that case their Lordships took the view that as a matter of fact the presumption was rebutted. It is entirely a mistake to imagine that that decision laid down the broad proposition-that if it could be shown that the land in suit was part of the landlord''s proprietary right, the presumption which the Courts are bound under the Bengal Tenancy Act to attach to the entry in the record has been rebutted. Indeed if such a broad proposition had been intended by their Lordships of the Privy Council it would have been in contravention of the express terms of the Bengal Tenancy Act. By Section 102, para, (j) it is the duty of the officer to make an entry in the record as to whether the land is claimed to be held rent free and whether or not rent is actually paid and if not paid whether or not the occupant is entitled to hold the land without payment of rent, and if so entitled, under what authority. The entries including entries of such matters as are prescribed by para. (j) are given presumptive force by the Act itself and the proposition in the wider and erroneous sense which was attempted (had their Lordships laid down any such proposition) would have meant that as between a landlord and tenant that the entries in the Record of Eights relating to these matters have no presumptive force whatever,

The view of Das and Kulwant Sahay, JJ. in tie case reported in Stonewigg v. Kameshwar Narayan Singh AIR 1923 Pat 340 was followed and assented to by the judgment of a Bench of which I was a member together with Chatterji, J., also reported in Jodha Sahu v. Tirbena Sahu, AIR 1929 Pat 748 . The same view of the judgment of the Privy Council was taken by Mohamad Noor and Madan, JJ. in so recent a case as in Surpat Singh and Others Vs. Surpat Singh and Others, which was decided subsequently to the decision of Wort, J. from which this appeal is now presented. The learned Judge of this Court has made reference to the decision of a Bench consisting of himself and Agarwala, J. in Kameshwar Singh Bahadur Vs. Shaikh Sakhawat Ali and Others, and in that case the Court did not follow the decisions of this Court reported in Jodha Sahu v. Tirbena Sahu, AIR 1929 Pat 748 notwithstanding that those decisions were cited to the Court. Now in the decision given by the learned Judge to which I have just referred it would seem that a point of principle in the matter of judicial decisions was not given its proper weight. The decision of the Privy Council had been interpreted in the two cases reported in Stonewigg v. Kameshwar Narayan Singh AIR 1923 Pat 340 and Jodha Sahu v. Tirbena Sahu, AIR 1929 Pat 748 and it was in the circumstances therefore desirable that the interpretation placed by the Court upon that Privy Council decision should be followed unless- a larger Bench should dissent from that interpretation. The learned Judges there, like Wort, J. in the particular case before us, seem to have reverted to and followed the contention that the decision of the Privy Council was to be given to have laid "down the principle that when once; the landlord had succeeded in showing that; the land in question fell within his proprietary rights the presumption given by the Record of Rights to the entry that the land was held rent free should be taken as rebutted. In view of the decisions in Stonewigg v. Kameshwar Narayan Singh AIR 1923 Pat 340 and Jodha Sahu v. Tirbena Sahu, AIR 1929 Pat 748 that opinion as to the meaning of the decision of the Privy Council was not open to a Bench of two Judges sitting in this Court. The plaintiffs in this case did attempt to prove by the evidence of a patwari that the land in respect of which the suit was brought was in fact assessed to rent, but this evidence was not believed and in the circum stances, therefore, the entry in the Record of Eights should have prevailed and the; defendant should have been held to have held his land rent free and the plaintiff''s suit should accordingly have failed. For these reasons I would allow the appeal set aside the judgment of the learned Judge of this Court and restore the judgments of the trial Court and the first appellate Court with costs throughout.

James. J.

I agree.