1. This is an appeal by the plaintiffs and arises out of a suit in ejectment. The plaintiffs case is that the defendants are under-raiyats and that the notice under Section 49, Bengal Tenancy Act had been served on them and that as in spite of this notice they did not vacate the land the present suit had to be instituted. The defence to the suit falls under two heads, namely, (1) that the plaintiffs are not proprietors in respect of this land and (2) that the defendants have acquired a right of occupancy by custom and as such are not liable to be ejected. The first defence did not prevail with the Court of first instance and with regard to the other part of the defence it was held that the defendants had not acquired a right of occupancy by custom and were liable to ejectment. The result was that the suit was decreed with costs, the plaintiffs raiyati right in the disputed land was declared and it was directed that the plaintiffs do recover khas possession thereof by evicting these defendants.
2. Against this decree the defendants preferred an appeal to the Court of the Additional District Judge of Tipperah who has reversed the decision of the Subordinate Judge and has dismissed the suit. With regard to the first head of the defence the learned District Judge is in agreement with the finding of the first Court and he has come to the conclusion that the defendants are not en- ' titled to question the plaintiff's title to be their landlords in respect of the raiyati holding to which the plaintiffs lay claim. With regard to the second head of defence he has come to a directly opposite conclusion to that of the Subordinate Judge who tried the suit in the first instance.
3. A second appeal has been taken to this Court by the plaintiffs and the main argument addressed to us has been directed to a criticizm of the finding of the District Judge that the plaintiffs had failed to rebut the presumption from the entry in the Record-of-Rights that the defendants had acquired a right of occupancy by custom. The argument on this part of the case is put in this way. It is said that there were no materials before the settlement officer which could justify his record to the effect that the defendants had acquired a right of occupancy by custom. It is also stated that even if the presumption arises from the entry in the Record-of-Rights that presumption has been rebutted by a . subsequent decision inter partes in a suit framed in accordance with the provisions of Section 66, Bengal Tenancy Act, under which a decree was passed for ejectment on failure of the defendants to pay the rent decree within a certain time and it is argued that that decree is conclusive for the purpose of showing that the defendants have got no right of occupancy in the disputed land and that in any event it is said that that decree is sufficient evidence to rebut the presumption arising from the entry in the Record-of-Rights. It is further argued that no presumption arises under S.103, Bengal Tenancy Act, in respect of the entry recording the acquisition of the right of occupancy by custom as it was within the competence of the settlement officer to record this incident of the holding under the provisions of Section 102, Bengal Tenancy Act. It is said that under Clause (b) of the said section all that a settlement officer is required to record is as to the class or classes to which tenant belongs, namely, as to whether he is a tenure holder or a raiyat holding at fixed rates or a settled raiyat or on occupancy raiyat, or a non-occupancy raiyat or an under-raiyat.
4. It is said that Clause (h) of the said section which empowers a settlement officer to record special condition or incident, if any of the tenancy does not give him an authority to record a general custom of the description recorded by him in the present case and in support of this view reliance has been placed on a decision of P. R. Das, J., in the case of Suresh Chandra Rai v. Sitaram Singh  57 I.C. 126 and it is said there that the burden lay on the defendants of establishing by evidence before the Court that there was a custom by which the defendants acquired a right of occupancy. Taking the last contention first it is to be observed that Clause (h), Section 102 is sufficiently wide to empower a settlement officer to record the incidents of an under-raiyati by which the und6r-raiyat is said to have acquired the right of occupancy by custom.
5. Ordinarily an under-raiyat cannot acquire a right of occupancy under the statute and this is certainly a special condition and incident of the tenancy of an under-raiyat if he acquired the right of occupancy by custom. This does not cease to be a special condition or incident of the tenancy merely be cause this question has to be established by evidence of a general character, with regard to the particular tenancy it is a special condition although the evidence, by which the special incident is established may be of a wide and general character. The decision of P. R. Das, J., seems not to have been followed in that Court as will appear from the decision of James, J., in the case of Singheswar Chowdhury v. Parbal Mondal, A.I.R. 1927 Patna, 376. Reference is also made to a decision of Kulwant Sahai, J., in the case of Debi Dayal Singh v. Gango Koer A.I.R. 1926 Pat. 68 in support of that view taken by P. R. Das, J. It is to be noticed however as appears from the decision of James, J., that that decision was reversed by an appeal under the Letters Patent. 'The judgment unfortunately of the Letters Patent was not placed before us. Be that as it may, this point had never been raised in this Court and in a decision of this Court in the case of Gopal Mondal v Topal Sankhari  46 Cal. 43 it was assumed by Matcher and Huda, JJ., that it was within the competence of a revenue officer to record an entry with respect to the acquisition by an under-raiyat of a right of occupancy by local usage or custom. The same view was also taken in a recent decision of this Court in the case of Abdul Hamid v. Eakub Ali : AIR1930Cal315 . We are of opinion having regard to the clear language of Clause (h), B. 102, that the Revenue Officer did not exceed the jurisdiction conferred on him in recording this incident of the right of occupancy having been acquired by the under-raiyat by custom.
6. With regard to the contention that there was no evidence before the settlement officer to justify him in recording the entry it is sufficient for us to state that the evidence of the defendants shows that a number of witnesses were examined before the settlement officer before ha made this record. The learned Subordinate Judge was therefore not right in saying that there was no evidence to show that there were materials on the basis of which the entry in question was made.
7. With regard to the contention that the presumption arising from the entry has been rebutted by the decision under Section 66, Ben. Ten. Act, it is sufficient for us to say that the decision which has been placed before us does not disclose that any issue with regard to the status of the defendants was tried in the rent suit. All that we find from the judgment is that the defendants were said to be the plaintiffs' under-raiyats. But then it is said that Section 66 could not be applied to a case of an under-raiyat who had acquired a right of occupancy. It is to be noticed however that Section 66 in terms does not exclude a case of an under-raiyat with right of occupancy for the opening words of the section are to the following effect:
When arrears of rent remain due from a tenant not being a permanent tenure-holder but a raiyat holding at a fixed rate or an occupancy raiyat.
8. It would appear clear from these words that Section 66 is not made inapplicable to under-raiyats with a right of occupancy. The legislature certainly had in view the distinction between an occupancy raiyat and an under-raiyat with a right of occupancy. An examination of Section 113 of the Act is sufficient to show that the Bengal Tenancy Act does recognize this distinction and if it was the intention of the legislature that Section 66 could not apply to an under-raiyat with a right of occupancy there was nothing to prevent it from saying so. Reference however is made in this connexion to Section 65 of the Act and it is said that the only class of persons who are not liable to ejectment are the permanent tenure-holders, a raiyat holding at a fixed rate or an occupancy raiyat. It is argued therefore that this decree under Section 66 is inconsistent with the position of the defendants having acquired a right of occupancy by custom. In this connexion reference may be made usefully to certain observations of the learned Chief Justice in the case in Abdul Hamid v. Eakub Ali : AIR1930Cal315 to which we have already referred. There as in the present case the decree was not executed before the tenant-defendants paid the money and the decree could not be followed by ejectment. The form of the decree, as the learned Chief Justice points out, was that if he did not pay the rent in so many days he was liable to be ejected. He did pay the rent and he never was ejected and it is said that because that was a proceeding under Section 66, because the form of the decree was that if he did not pay he was liable to be ejected, that is conclusive against him to the effect that he has no right of occupancy or at all events, it is evidence which the lower appellate Court should have regarded as sufficient to overthrow the entry in the Record-of-Rights. For these reasons we are of opinion that the decree under Section 66 is not sufficient to displace the effect of the presumption arising from the entry in the Record-of-Rights. We think that the learned District Judge was right in the view which he took with regard to the effect of the entry in the Record-of-Rights. He considered the oral evidence which was only that of the plaintiffs given to rebut the entry in the Record-of-Rights. He is not satisfied that that evidence sufficiently rebuts the entry.
9. Another point has been taken with regard to the question of costs. It is said that the suit which was instituted by the plaintiffs-appellants was one framed on the basis of ejectment of a tenant and under the provisions of Section 7, Clause (11), Court-fees Act, the plaintiffs were only liable to pay court fees on a year's rental. The learned Judge however thought that court fees should be assessed on the basis as if this was a suit for possession as against the trespasser. The view has been uniformly maintained in this Court that the proper court fee payable in such a case is that on a year's rental. There is only one decision of Cammiade, J., who took a contrary view. This is clearly opposed to the earlier decisions of this Court which are uniform in this behalf. In a subsequent decision of Suhrawardy, J., with whom Jack, J., concurred, it was pointed out that the view taken by Cam-miade, J., could not be sustained in view of the consensus of opinion of this Court contrary to that decision. The learned District Judge seams to have been wrong in asking the appellants before him, respondents before us for deficit court-fees remembering that the suit is one for recovery of possession as against the trespasser. It was for the defendants-respondents before us to complain against that decision. He did not however take any such step. The result is that as the appeal by the defendants had been allowed with costs by the lower appellate Court the plaintiffs have become liable to pay this sum to the defendants on the erroneous view taken by the learned District Judge. It is not right that the plaintiffs should pay Rs. 195 to the defendants-respondents; we are informed by the learned advocate for the appellants that this sum has already bean realized. In the circumstances, we think the proper order to make is to dismiss the app3al and vary the decree of the lower appellate Court only with regard to costs.
10. The defendants-respondents will be entitled to costs both in the Court of first instance and in this Court. They will also get costs of the lower appellate Court lass Rs. 195 from the plaintiffs. The sum of Rs. 195 which has already been taken by the defendants-respondents will be set off against costs which have been awarded to them.
11. I agree.