Surpat Sinha and Others vs Pratap Mandal

Wort, J.—This is the landlord''s appeal in an action brought by the tenant u/s 104-H, Bihar Tenancy Act. The record of rights was finally published on 27th December 1929, and recorded the tenant as istemrari lekenmukarrari nehi. It is against that record that the suit was brought as I have already indicated. The only question in the appeal is whether the tenant was entitled to the presumption arising by reason of Section 50 of the Act, that is to say, whether it should be presumed in this case that as the tenant was holding at a rent which had not been changed during the 20 years immediately before the institution of the suit, he had held at that rent since the Permanent Settlement, therefore the rent was not liable to enhancement. It is contended on behalf of the tenant-respondent that he is entitled to that presumption in spite of Section 115 of the Act. The words of that section I propose to read; they are:

When the particulars mentioned in Section 102, Clause (b) have been recorded under this chapter in respect of any tenancy, the presumption u/s 50 shall not thereafter apply to that tenancy.

Had it not been for a number of decisions (one only however directly in point) I should not have the slightest doubt as to what that section means and its proper construction. It seems to me plain that when the record is made, or to use the words of the section ''when the particulars have been recorded (and they have been recorded in this case) from the time of that record, the presumption u/s 50 of the Act shall not apply. The opposite view is best expressed, by quoting the words of Mookerjee, J., in the decision in Prasanna Kumar Sen Vs. Durga Charan Chakrabarti, . In referring to the contention between the parties Mookerjee, J. said:

We are unable to accept this interpretation of the scope of Section 115. The expression ''thereafter'' in that section clearly signifies after the particulars have been finally recorded after recourse to all the provisions contained in Ch. 10 for the attainment of finality in this respect.''

During the course of the argument in that case reference was made to Pirthi Chand Lal v. Basarat Ali (1910) 37 Cal 30. But the point which is before me was not expressly decided in that case; indeed I might say, that the learned Judges definitely left that matter open. They made this statement:

It is not necessary to consider in this case whether recorded means recorded after all chances of an amendment of the record under any other provision of the chapter are over, including a suit as contemplated by Section 111.

There are decisions of this Court in actions brought under sections other than Section 104-H upon which this action depends. Mr. Mahabir Prasad appearing on behalf of the respondents contends that by inference at any rate those decisions assist him in his contention. But in my judgment the plain meaning of Section 115 of the Act can hardly raise any doubt. But as I have said the only doubt that arises is by reason of the decision of the learned Judges of the Calcutta High Court to which I have referred. I ought to add with regard to the decision in Prasanna Kumar Sen Vs. Durga Charan Chakrabarti, that it does not appear (if I may say so with great respect to the learned Judges who decided that case) that by coming to the conclusion that the section meant ''after the particulars have been finally recorded after recourse to all the provisions contained in Ch. 10'' the learned Judges definitely add something to Section 115 of the Act which does not appear in the section. I find myself in great difficulty in coming to that conclusion. In the view that I take the presumption u/s 50 of the Act was not a presumption upon which the tenant in this case could rely. It is admitted that is the only point in the case, and if that point is decided against the plaintiff, he necessarily fails in his suit. For the reasons which I have stated, I think this appeal ought to be allowed and the plaintiff''s suit dismissed with costs throughout. The plaintiff may have Leave to appeal.