Mahabir Singh and Others vs Sri Ramsumran Anantnidhi and Others

Rowland, J.—The plaintiff-respondents are co-sharer proprietors having 3 annas 6 gandas interest in Tauzi No. 1321 which is diara land of which they and their co-sharers have taken temporary settlement. The periods of settlement, it seems, are of about 10 years. The suit refers to a holding which in the; finally published'' Survey Record of Rights prepared under Ch. 10, Ben. Ten. Act, and finally, published on. 20th January 1988 is shown as a cash rent, paying holding. The tenants whose names were entered in that record subsequently found their title assailed by the defendants first party, who after certain proceedings u/s 145, obtained a decree declaring, their title and awarding them possession of the holding in 1925. In that, suit they based their own title on a hukumnama granted to them by the landlord in 1918 in which there was a stipulation for payment of batai rent.

Now the plaintiffs sue the successful claimants of the holding'' for the rent of the-years 1339 to 1342. A portion of the claim having been dismissed as barred by limitation a, decree has been passed in respect of years 1341 and 1342 only. The defendants pleaded, that the rent of the holding was that entered in the settlement rent roll and that the plaintiff was not entitled to produce rent; but the Courts below have held, that in face of the hukumnama which was propounded in the title suit as the basis oft the title of these defendants it did not lie in their mouth now to allege that the; rent was not a produce rent. It was said, that when the presumption of correctness of the Record of Rights had been rebutted in so far as it purported to show the Ram chandrapur raiyats as tenants of the holding the whole should be treated as cancelled and disproved; and the rent payable would be that agreed between the tenant and these landlord. Accordingly a decree was passed for bhaoli rent.

The question in this appeal is whether the defendants are entitled to retain the holding oh payment of the cash rent entered, in the Record of Rights. The Courts below have not correctly appreciated the difference between survey and settlement proceedings in a permanently settled area and similar proceedings in a temporarily settled; estate in connexion with which a settlement of land revenue is being made, In the former proceedings there is a presumption, of correctness attaching to the Record of Rights u/s 103-B which is rebuttable by evidence in respect of any and every portion of the entry. But in the latter case it is not simply a matter of recording existing rents. The first duty of the revenue officer u/s 104 is to settle fair and equitable rents for tenants of every class. Such fair rents may be or may'' not be the same as rents agreed on between the landlord and the tenant but if they differ there is no doubt whatever which of the two is to prevail. All rents settled under Sections 104-A to 104-G are by virtue of Section 104-J to be deemed to have been correctly settled and to be fair and equitable rents within the meaning of this Act.

The effect of this is that whereas the presumption of correctness attaching generally to entries in the Record of Rights can be rebutted by evidence, the entry with regard to rent is on a different footing. It is conclusive. There is consistent and ample authority that in a settlement under Part 2 the entry as to rent still remains conclusive even if the other entries have been rebutted and proved incorrect. A number of cases in which the law has been examined and explained are summarized in Priya Nath Basu and Others Vs. Tarachand Moral and Others, . This line of authority goes right back to Ambica Charan v. Joy Chandra 13 C.W.N. 210 in which the distinction between rebuttable and conclusive entries is clearly brought out.

It has been argued for the respondents that the settlement of 1925 fixed the rent as between the plaintiffs and the Ramchandrapur raiyats and on the assumption that it is analogous to a decree as between these persons it will not be binding as between the plaintiffs and a third party, namely the present defendants. The answer to this is that the rent was fixed in respect of a tenancy as between the landlord and the raiyat for the time being representing the tenancy. The tenancy was at that time represented by the Ramchandrapur raiyats and is now represented by the present defendants who have displaced them. That is sufficient for the disposal of the appeal. But I may in passing refer to the undertaking of the plaintiffs given in their kabuliyat, Ex. O, at the time of taking temporary settlement of this mahal, not to demand or realize rents in excess of the rents entered in the settlement rent roll.

In the result the plaintiffs are found entitled not to bhaoli rent but to cash rent at the rate entered in the Record of Rights for the years 1341-42.

The plaintiffs will get a modified decree accordingly They will get their proportionate costs of the first Court and the parties will bear their own costs of the lower Appellate Court and this Court.