1. This is an appeal by the plaintiff and arises out of a suit in ejectment.
2. Plaintiff's case is that he had a raiyati right over 88 bighas odd land bearing a rent of Rs. 83-5-7 1/2 pies per year and that the defendant is an under-raiyat under him, that the plaintiff served a notice under Section 49, Ben. Ten. Act, on the defendant for vacating the land at the end of Chaitra, 1329 B.S. and that the defendant did not give up possession and hence the suit was instituted. The defence of the defendant is that he is an occupancy raiyat and that no notice was served on him.
3. The Court of first instance found that the status of the plaintiff was that of a raiyat and that consequently the defendant was an under-raiyat, that notice under Section 49, Ben. Ten. Act, was served on the defendant and that the plaintiff was entitled to get khas possession of the suit lands by ejecting the defendants therefrom. A decree for mesne profiits was also given.
4. Against this decision of the Munsiff, an appeal was taken to the Court of the Additional Subordinate Judge of Rajshahi. The learned Subordinate Judge reversed the decision of the Munsiff and dismissed the plaintiff's suit.
5. Against this decision, a second appeal has been taken to this Court and it has been argued on behalf of the appellant that the lower appellate Court has committed an error of law in applying the presumption under Section 5, Sub-clause (5), Ben. Ten. Act, to the facts of the present case, seeing that it has been established that the area of the joto under which the defendant holds was only 88 bighas. The Subordinate Judge says:
The law does not require that the area of more than 100 bighas should be in one single jote. For the purpose of the presumption under Section 5(5), Tenancy Act, to arise, it is sufficient that the tenant should hold area which exceeds 100 bighas. So, as in the present case we start with the presumtion that plaintiff is a tenure holder and as the presumption is not rebuttad by showing that a portion is reserved to be cultivated by the tenant himself : vide Bibudendra Man Singh v. Debendra Nath Das  20 C.L.J. 140 and as the presumption is not rebutted by the fact even of the lease or rent receipt describing the tenant as raiyat : vide Gokul Mandar v. Pudmanund Singh  20 Cal. 707 and as a person, even if he requires land for cultivation but subsequently converts himself into a rent receiver, gives by such conduct the status of raiyat to under-tenant so far as the under tenant and himself are concerned : vide Mahesh Jha v. Manbharam Mia  5 C.L.J. 522 and as the only documents (Exs. 2 and 3) relied on by the learned lower Court to hold that plaintiff is a raiyat, show nothing but admission of third parties and plaintiffs acquiescence, which are not good evidence against defendant and as in order to apply the presumption of Section 5(3), Tenancy Act in the case would be nothing short of putting the onus its the case on defendant in a circuitous way, which is not allowable, I hold that as the evidence and circumstances stand in the present case, the defendant has not been proved to be an under-raiyat for the land in suit.
6. It is argued on behalf of the appellant that the presumption under Section 5(5) would only apply where the area held by the tenant under a single grant is in excess of 100 bighas. It seams to me that that is the correct interpretation which ought to be put on the provisions of Section 5(5), Ben. Ten. Act. But even assuming that the presumption applies to a case where the tenant is shown to be in possession of the land in excess of 100 standard bighas, that presumption is rebutted by showing that in respect of the tenancy in question, the tenant was holding the land not in excess of 100 bighas but a smaller area and the tenancy in question along with other lands constituted the 100 bighas in possession of the tenant. The question in controversy was the subject of consideration before a Full Bench of the Patna High Court in the case of Balunhi Rout v. Kunja Behari Deb A.I.R. 1927 Pat. 209. One of the learned Judges in that Pull Bench states the law as follows:
The presumption arises merely from the area hold by a tenant being over 33 acres or 100 bighas : see the case of Debendra Nath v. Bibudhendra Man Singh A.I.R. 1918 P.C. 8.
7. Clause 5, Section 5, says that:
where the area held by a tenant exceeds 33 across the tenant shall be presumed to be a tenure holder until the contrary is shown.
8. It is for those who want to displace the presumption arising from the area being over 33 acres, to show that the lands were not held under one grant or to show that the purpose for which the right of tenancy was acquired was not such as would make the tenant a tenure-holder as denned in Clause (1), Section 5. These having not been shown in the present case the presumption of the tenant being tenure-holder under Section 5(5) would prevail. Now, in the present case it is admitted that the tenancy in respect of which the plaintiff claims to be a raiyat was of the area of 88 bighas, The defendant sought to make out a case that the area consisted of 100 bighas and subsequently it was subdivided into two holdings of 88 and 12 bighas. The lower appellate Court, however, points out that he does not accept the evidence on which the defendant sought to establish this subdivision, Even assuming for the sake of argument that the tenant is shown to be in possession of 100 bighas, that presumption is rebutted the moment it is shown that the tenancy in respect of which the presumption is sought to be availed of was really much shorter than 100 bighas, In the Patna case reference may also be made to the observations of Chief Justice Sir Dawson Miller at p. 714 (of 6 Pat.) of the report where he points out that the statutory presumption would apply as soon as it is shown that the tenant holds 100 bighas and it is for the party challenging the presumption to prove the contrary. The learned Chief Justice observed as follows:
In the judgment the subject of appeal 45 of 1924 the learned District Judga appears to have held that unless the party relying on the statutory presumption proved not only that the area was more than 33 acres but also that the whole area was held under a single grant the presumption would not apply. In my opinion this was misplacing the burden of proof. Once the area is shown to exceed 33 acres or 100 bighas, the presumption arises and it is for the party challenging it to prove the contrary.
9. This is also the view of Mr. Justice Jwala Prosad to which I have already referred. It seems to me, therefore, that the learned Subordinate Judge was in error, having regard to the fact that the tenancy consisted of 88 bighas, in holding that the presumption under Clause (5), Section 5 if any that the holding was a tenure had not been rebutted by that circumstance. As the judgment of the Subordinate Judge is vitiated by this erroneous view about the presumption arising under Section 5(5), Ben. Ten. Act, his decree and judgment must be sot aside and the case remitted back to him in order that he may rehear the appeal with reference to the other evidence in the case and without allowing the defendant to avail himself of the benefit of the presumption of Section 5(5), Ben. Ten Act. The lower appellate Court will decide on the evidence whether the plaintiff has been able to establish his case that he is a raiyat in respect of this tenancy. If he holds that the plaintiff has failed to establish such a case, plaintiffs' suit will be dismissed. If, on the other hand, on the rest of the evidence the lower appellate Court comes to the conclusion that the plaintiff has established that he is a raiyat, plaintiffs' suit will be decreed. The appeal will be decided in the light of the observations made above. Costs of this appeal will abide the result.