Sankar Malik and Others vs Raja Braja Sundar Deb

Mohahad Noor, J.—The suit out of which this appeal has arisen was instituted by the plaintiff respondent for ejecting the defendants-appellants from certain lands which according to the plaintiffs they (the defendants) held under him as service-tenure holders in six villages on the ground that they refused to perform the service for which the tenures were created. The trial Court decreed the suit for the lands of four of these villages, and dismissed it in respect of those in two villages Madhpur and Tukunia. It found that the defendants were service-tenure-holders of these lands and that they refused to perform the services, but relying upon an entry in the current Record of Rights that the defendants were occupancy raiyats paying a quit rent on account of their liability to perform services, it held that though this entry about the defendants being occupancy raiyats was wrong and was brought about fraudulently by the defendants, the plaintiff having realized the quit rent by certificate proceedings and also amicably recognized the status of the defendants as occupancy raiyats was not entitled to eject them.

This decree of the learned Munsif seems to have been accepted by the defendants, but the plaintiff appealed in respect of the lands of the two villages for which the suit was dismissed. The learned Subordinate Judge has reversed the decree of the trial Court and has decreed the plaintiff''s suit in respect of these lands also. He has held that the remark column shows that the defendants were service-tenure holders and as such the entry about their being occupancy raiyats was obviously wrong. The defend, ants have preferred this second appeal.

It was contended by the learned advocate for the appellant that the presumption arising from the Record of Rights that the defendants were occupancy raiyats has not been rebutted. But the fact is otherwise. The learned Munsif found that the father of defendant 1 was a service-tenure bolder and on his death the tenancy was renewed in favour of defendant 1 and the lands were settled with him on condition of his rendering service, but he fraudulently got himself recorded as raiyat with a remark that he was to pay quit rent. This finding of the learned Munsif was based upon the evidence adduced on behalf of the plaintiff and therefore it must be taken that according to his view the presumption of the Record of Rights of the current settlement, which it may be noted was against the entries in the provincial and the revisional settlements, was rebutted by the oral evidence adduced on behalf of the plaintiff. The learned Subordinate Judge has also found the entry in the current settlement to be wrong and we must take it that according to him also the presumption about the correctness of the entry was rebutted. Apart from this, the entries in the current settlement are inconsistent.

On the one hand, the defendants'' status has been mentioned as that of occupancy raiyats, but at the same time it is stated in the remark column that they have to perform services. The presumption of one entry stands rebutted by another entry in a different column. The only ground, as I have stated, given by the learned Munsif for dismissing this part of the suit was that the acceptance of rent by the plaintiff meant recognition of the status of the defendant, but in my opinion the learned Subordinate Judge is perfectly right in holding that the acceptance of quit rent mentioned in the Record of Rights did not deprive the plaintiff of his right to eject the defendant if defendant 1 refused to perform the services which he was bound to perform according to the terms of the tenancy.

The appeal seems to me to be concluded by the finding of fact, namely that the Record of Rights has been proved to be wrong by the evidence adduced and that the only legal point involved was whether the acceptance of rent under the circum-stance stated above created an occupancy tenancy in favour of the defendants. In my opinion, the view of law taken by the learned Subordinate Judge is correct, and I would dismiss this appeal with costs.

Harries, C.J.

I agree.