1. The suit which has given rise to this appeal was brought by the plaintiff-appellant for arrears of rent against the defendant respondent a fixed-rate tenant, at the rate of Rs. 62-10-8 a year, in respect of a holding comprising 19 bighas 7 biswas.
2. The suit was contested only as regards the rate of rent. According to the defendant, the rent of the holding is only Rs. 44-10-8 which has always been paid by him. The only issue which arose in the case was whether the rent payable by the defendant was Rs. 62-10-8 or Rs. 44-10-8. Both the lower Courts have upheld the defence. Hence this second appeal.
3. The case was originally heard by a learned single Judge of this Court, who referred it to a Bench in view of conflicting opinions expressed by the Board of Revenue and a learned Judge of this Court as regards the right construction of the expression 'adam vasuli' occurring in the revenue papers in which the rent payable by the defendant is noted as Rs. 62 10-8 but in the column of remarks a sum of Rs. 18 is entered as 'adam vasuli.'
4. We have not been referred to any report of the case decided by this Court in which the precise question raised in this appeal was considered and decided. Apparently the case commented on and dissented from by the Board of Revenue in Shri Narain Singh v. Babu Sheo Padarath Singh Selected Decision 7 of 1921 is the one to which reference has been made by the learned District Judge and the learned referring Judge of this Court. Sufficient extracts from the decision of this Court are given in the judgment of the Board of Revenue to enable us to appreciate the view of this Court and the reasons on which it proceeds.
5. We do not think there is much difficulty in interpreting the words 'adam vasuli,' which, as distinguished from the cognate expression 'adam vasuli' may mean 'not realized' or 'not realizable,' while the latter expression means 'not realized.' We may note that in the judgment of the Board of Revenue and in that of this Court above referred to, the word is 'vasul' and not 'vasuli' which occurs in the entry with which we are concerned and which is quoted in the judgments of the lower Courts. As a matter of fact, 'adam. vasuli' is an incorrect grammatical variation of the expression ' adam vasul.' The former is sometimes used to signify rent or other payment which is not realizable. But we do not think that in a case of this kind, whether the excess amount is noted as 'adam vasul' or 'adum vasuli' can be decided solely on the strict etymological sense of the words used.
6. A fixed rate tenant has been defined as a person holding land in a district or a portion of a district, which is, permanently settled, from the time of the permanent settlement at the same rate of rent (Section 8, Act 2 of 1901 and Section 12, Act 3 of 1926). Every entry made in the revision of records which took place since the first day of January 1875 recording a person as a fixed rate tenant is, in the absence of judicial decision to the contrary, in proceedings instituted before 1st January 1902, conclusive proof that a person recorded as a fixed rate tenant is such a tenant in respect of the holding then shown as his fixed rate tenancy; cf. Section 9, Act 2 of 1901, and Section 13, Act 3 of 1926. A reference to these sections will leave no doubt that the conclusive presumption enjoined by them has no reference to the amount of rent shown by the entry at the settlement. It is confined to the status of the tenant as a fixed rate tenant. With all respect to the learned members of the Board of Revenue who decided the case of Shri Narain Singh v. Babu Sheo Padarath Singh Selected Decision 7 of 1921 we are unable to call in aid the definition of a fixed rate tenant, which refers to uniformity of rent since the permanent settlement, in the construction of a different rule, which is one of evidence, and raises a conclusive presumption as regards a specified matter, namely, status of the tenant. Where under a given rule of law extreme evidential value is to be assigned to a given piece of evidence, the probative force of such piece of evidence cannot be extended to collateral matters. Where one fact is declared by law to be conclusive proof of another, the Court cannot allow evidence to be given in rebuttal. It is not possible to point to anything occurring in the provisions of the Tenancy Act which expressly or by necessary implication excludes evidence to prove that the rent payable by a fixed rate tenant was incorrectly recorded at the settlement of 1875 or in any other revenue paper.
7. We are however in agreement with the Board of Revenue as regards the alternative ground on which they base their view. They observe that:
in any case, the entry made by the record officer is...presumed to be true until the contrary was proved.
8. We think that a question like the one before us should be approached on this footing. Prima facie a fixed rate tenant is liable to pay the rent shown in the settlement record against the holding. Cogent evidence is required at this distant date to establish the incorrectness of the entry made at the time of the settlement. But the burden of proof thus thrown on the tenant should not amount to virtual disability. In the case before us, as found by both the Courts below:
as far back as memory goes Rs. 44-10-8 has been paid and accepted, and not Rs. 62-10-8 as now claimed.
9. Considerable weight attaches to a circumstance like this. In the absence of any explanation, it is difficult to imagine any reason for the landlord contenting himself with a smaller rant than what he was entitled to recover. The tacit acceptance by the landlord of the lesser; amount for a large number of years, and in the total absence of proof of assertion of the right to recover the larger sum at any time since entry was made, is, in our opinion, sufficient rebuttal of the entry made at the settlement as regards the rent payable by the defendant. In cases like this, no hard and fast rule can be laid down. Bach case must depend upon its own circumstances. If evidence adduced in rebuttal of the entry made at the settlement, whether afforded by conduct of the parties or otherwise, is sufficiently cogent to outweigh the presumption arising from such entry the onus primarily resting on the tenant should be deemed to have been discharged. We are clearly of opinion that the view taken by the Courts below is correct. Accordingly we dismiss this appeal with costs.
10. Before this judgment, was dictated Mr. Kakkar, advocate for the respondents, informed us that the respondent Jang Bahadur had died on 7th February 1930, and no legal representative having been brought on the record he desired the question of abatement to be considered. As we were inclined to dismiss the appeal, we did not consider it necessary to take any notice of that aspect of the case.