Maharaja Bhahadur Kesho Prasad Singh vs Isser Dubey and Others

Das, J.—The only question which has been argued before us is whether the learned District Judge was right in coming to the conclusion that the plaintiffs were tenant3 at a fixed rate of rent. The learned District Judge thought that the tenants were entitled to the presumption of Section 50(2) of the Bengal Tenancy Act; he also thought that even if Section 50(2) did not apply there was evidence from which fixity of rent might be inferred.

Now so far as the first point is concerned, it is settled law so far as this Court is concerned that when the record of rights is against them, the tenants are not entitled to the benefit of the presumption afforded by Section 50(2) of the Bengal Tenancy Act. This was the view which was adopted in this Court only on the 20th of July, last by a Bench of which I was a member.

The next point is whether the learned District Judge was right in coming to the conclusion that under the general law it could be inferred that there was fixity of rent.

Now so far as the evidence is concerned, the learned District Judge has summarised it in the judgment. The plaintiffs produced rent receipts which show payment of rent for 20 years and it appears that the defendant''s Patwari said in his evidence that there was no alteration of rent for 48 years.

Now in the case of Maharajah Kesho Prasad Singh v. Ramjas Panday 1923 Pat 423 this Court came to the conclusion that where "the tenant could not have the benefit of the presumption of Section 50(2) of the Bengal Tenancy Act he had to establish by evidence that the rate of rent had not been changed from the time of the Permanent Settlement; in other words once the record-of-rights shows that the tenant is not a tenant at a fixed rate of rent, it is for the tenant to establish by cogent evidence that his rent or rate of rent has nod been changed from the time of the permanent settlement. Mr. Justice Coutts in delivering the judgment in the easel just cited said this.

It is contended by the learned Vakil for the respondents that in view of the fact that the tenants have proved that they have paid rent at a fixed rate for from 25 to 33 years the Court is entitled to presume that they have been paying at fixed rate from the time of the Permanent Settlement. I am unable to accept this contention. If it were correct it would lead to this, that a tenant, although he was not entitled to the presumption which arises u/s 50 Clause (2) of the Bengal Tenancy Act, would be entitled to prove that he had paid rent at the same rate for say 21 years and would then be en titled to what has been called a natural presumption in his favour. This could clearly not be so. No such presumption arises." I entirely agree with the view which was expressed in the case cited by Mr. Justice Coutts.

The learned Vakil for the respondents has urged before us that the finding of the learned District Judge is a finding of fact and is therefore binding on us in second appeal. In my opinion the argument is not a correct one. The learned Judge found as a fact that the evidence established that there has been no change of rent for 48 years. He then inferred, and that inference was an inference of law, that Sixty of rent could be presumed. In my opinion he erred in coming to the conclusion that from the facts found by him fixity of rent could be inferred.

The appeals succeed on the point which has been urged before us by Mr. Kulwant Sahai; in other words the finding of the learned District Judge that the plaintiffs are tenants at fixed rate is set aside. The plaintiffs are not in any of these cases entitled to the declaration that they are tenants holding at a fixed rate. The appellant will be entitled to the costs of these appeals.