Kameshwar Singh Bahadur vs Krishna Chandrma Jew and Others

Dhavle, J.—This appeal arises out of a suit for a declaration that the interest of the defendant in a certain Khata No. 19 of Mouza Basarh is not the interest of a mokarrari tenure-holder but the interest of an ordinary tenure-holder not withstanding a recent entry in the Record of Rights in favour of the defendant. The lower Courts have concurrently taken a view against the defendant who has now come up here in second appeal.

The first contention on behalf of the defendant is that the lower Appellate Court has misplaced the onus when it observes:

It is also a well-settled principle of law that when the entries are disputed, it becomes incumbent upon the party relying on them to show their correctness by producing the evidence of anterior period to establish the foundation on which the entries were made.

3.The entrius referred to are entries in the Record of Rights, and if the learned Additional District Judge intended to lay it down that it is for the party which relies on the Record of Rights to support it (when challenged by the other side) by producing evidence of a period anterior to the Record of Rights, he clearly fell into an error, for it is well settled and requires no authority to be cited that it is for the party challenging the Record of Rights to displace the presumption of correctness that applies to it by statute.

In support of the plaintiffs'' case that the tenure was not mokarrari, reliance was placed oh Ex. 2, compromise decree of 1889 in Suit No. 37 of 1888, which shows that the tenure which is the parent of the tenure now in suit was at that time adjusted, if not created, by the amalgamation of two tenures, one of 537 bighas odd and the other of 109 bighas odd, with a total rent equal to double the previous rent of the two older tenures.

The learned advocate for the appellant has urged that the circumstances of that litigation of 1888 have not been fully placed before the Court, that as the matter ended in a compromise, there was no fight between the parties, and that the agreement arrived at between the parties on that occasion does not necessarily show that the tenure with which we are now concerned, is not a tenure to which the presumption of Section 50, Bihar Tenancy Act will apply. But the compromise decree does show what it was that the defendant had pleaded on that occasion. It is true that there has been no change of rent since the compromise in respect of the total of 647 bighas odd, but this again does not entitle the appellant to the presumption that the tenure in suit has been held at a uniform rent from the time of the permanent settlement.

The learned advocate has referred to Sub-section 2 of Section 50, Bihar Tenancy Act, but this sub-section only provides for such a presumption from proof that the rent has not been changed during the 20 years immediately before the institution of a suit "until the contrary is shown"; and it is obvious that in the present case the contrary has been shown in that the rent was changed in 1889 to double the previous amount. The learned advocate has there, upon urged that the presumption available in such cases is not limited to the condition I given in Sub-section (2) of Section 50. Even if this is conceded, it seems to me impossible to, conceive how any presumption could arise that the appellant has been holding at a uniform rate since the time of the permanent settlement when we know as a matter of fact that the rent of the tenure was doubled in 1889. Reference has been made to Ramanuja Das v. Midnapur Zamindary Co. Ltd. (1912) 16 C.W.N. 725, in which Jenkins C.J. pointed out that from the mere fact that the rent had been once enhanced, it did not follow that it could be enhanced again. This observation must however be taken with reference to the facts of the particular case, and one such fact was an express stipulation that there shall be no increase or diminution of the rent of Rs. 17 sicca. The learned Chief Justice was dealing with a particular kabuliyat containing that stipulation and in the present case we have no kabuliyat at all and no stipulation anywhere that there shall be no increase or diminution of the rent.

The learned advocate for the appellant also laid stress on two documents, the mortgage bond and the sale proclamation that followed in execution after the mortgage suit was decreed, which have been dealt with by the lower Courts. The appellant''s contention was that these documents show that the tenure was mokarrari.

The trial Court overruled this contention on the ground that the passage which was then relied upon for the appellant, 647 bighas 8 cottas arazi hasdb Chohaddi zail jis ha jama salana moblag Rupees 143-6-0 alawa cess mokarrar hai merely showed the rent was fixed at that figure without indicating that the tenure itself was mokarrari. The lower Appellate Court took the same view. This was clearly right, as far as that particular passage was concerned.

The learned advocate points out that the documents also speak of the property as haqit jote mokarrari which does clearly show that that was the nature of the property with which the parties thought that they were dealing. But a description of the property by the tenant when mortgaging it to somebody else, a description which naturally reproduced in the sale proclamation, cannot, in any sense, be binding on the landlord.

That was the view taken by a Full Bench of the Calcutta High Court in Brrojendra Kishore Roy v. Mohim Chandar A.I.R.1927. Cal.14. 1,which was followed by a Bench consisting of Agarwala J. and my learned brother in Jyoti Prasad Singh Deo v. Bharat Shah Babu A.I.R.19365. Pat. 543. Exs. D and F, the documents relied on for showing that the property is mokarrari, are therefore of no assistance to the appellant. Ex. 2, which was relied on for the plaintiffs, respondents, shows that the property is mokarrari and Ex. G, the order of the Assistant Settlement Officer determining that this property is mokarrari, was based merely on the fact that for 23 years there had been no change in the rent. That view is clearly wrong, having regard to the fact that we know in the present case(that the rent was altered in 1889, while no evidence of any earlier date showing the origin of the tenancy or its existence at the time of the permanent settlement has been produced on behalf of the appellant.

The contentions urged before us on behalf of the appellant all fail. Though more than one observation of the lower Appellate Court is mistaken in law, it seems to me that the suit has been perfectly correctly decided. I would therefore dismiss this appeal with costs.

Yarma J.

I agree.