1. This appeal is preferred by the defendants. They are the owners of a sikmi taluk named Kashi Chandra Chakerbarty, and in the record-of-rights recently published the rent of the taluk was stated to be not liable to enhancement. The landlord, however, challenged the accuracy of this entry and made an application before the Settlement Officer for enhancement of the rent under the provisions of Section 7 of the Bengal Tenancy Act. The Settlement Officer found that the landlord had failed to rebut the presumptions arising from the entry in the record-of-rights and from payment of an unvarying rent for 20 years and dismissed the application. The landlord appealed and the learned Judge reversed the decision of the first Court : he based his finding on two pieces of evidence, first, the absence of the taluk in a return submitted by the zemindar in 1242 B.S. and second, the name of the taluk, the name being that of the father of the appellants.
2. So far as the zemindar's return is concerned, the position is rather obscure. Returns were prescribed by Section 48 of Reg. VIII of 1793, and also by Section 15 of Reg. VII of 1799, and it is possible that the document produced in this case was prepared in accordance with one or other of those sections, though why it should have been prepared in 1242 B.S. is not explained. Assuming, however, that the return was made under one or other of those sections, other questions arise. The first is whether the return can be received in evidence at all, the second is whether the nature of the requirements warrants any inference based on the absence of the sikmi in the return, and the third is whether in any event the defendants can be bound by such an inference.
3. In the absence of further information about this particular return, I feel unwilling to come to any decision as to whether it could properly be received in evidence; and it is not necessary that I should do so. It is the same with the second objection. Regarding the third objection, however, I feel no doubt. Sanctity may attach to an old document, but the return before us was prepared by the landlord alone without any opportunity being given to the tenants of admitting its correctness. It is possible of course that the defendants' taluk was not in existence then, so that the return could not contain an admission of accuracy by their predecessors, but that explanation cannot be accepted until it is shown that the return contains an exhaustive catalogue of the subordinate interests in the estate, and that the accuracy of the catalogue is admitted by the owners of those interests. It is not suggested that in this case the return can pass such a test. I think therefore that the absence of the taluk in the return certainly cannot bind the defendants, and that, if it is evidence at all, it is of very slight weight.
4. The other piece of evidence on which the learned Judge relies is also slight. He says that the taluk bears the name of Kashi Nath Chakerbarty and he assumes that that must be the name of the first holder. That is quite possible. On the other hand the defendants' ease is that their father bought from one Dhupi, and it is quite possible that he at once proceeded to get the tenure known by a more pleasing name.
5. The learned Judge also explains away three comments made by the first Court. Two of them are of little importance, but the first is cogent. A kobala of 1239 B.S. mentioned a taluk which is still existing under the same name; that taluk, however, was not mentioned in the return of 1242 B.S. and the Settlement Officer used the omission to show that the defendants' taluk might also have been omitted. The learned Judge misses the point of the argument when he disposes of it by saying that the land described in the kobala is not proved to lie within the taluk.
6. My conclusion is that the learned Judge is in error : it is not a mere matter of appreciating evidence : he has treated as binding on the defendants what cannot be more than a slender piece of evidence. It is not necessary that there should be a remand, for all the evidence is before us, and it is clear that if the return of 1242 B.S. does not bind the defendants, the evidence adduced by the plaintiff is not nearly enough to rebut the presumption, wising from the entry in the record-of-rights.
7. In my opinion therefore this appeal should be allowed, and the decision of the first Court restored with costs in this Court and the lower Appellate Court the hearing fee in this Court being assessed at two gold mohurs.
8. This appeal arises out of a proceeding under Section 105 of the Bengal Tenancy Act wherein the plaintiff sought to enhance the rent of the defendants' taluk which had been recorded as not liable to enhancement in the finally published record-of-rights.
9. The rent of the taluk admittedly being paid at a uniform rate for upwards of 20 years immediately before the institution of the proceeding, the defendants relied upon a presumption that arose in their favour under Section 50, Clause (2) of the Act. The Assistant Settlement Officer held that that presumption had not been rebutted and dismissed the plaintiff's case. The Special Judge, on appeal, being of a contrary opinion remanded the case for settling a fair and equitable rent.
10. Against this decision the present appeal has been preferred by the defendants.
11. The learned Special Judge has observed in his judgment that the defendants are entitled to the presumption arising under Section 50, Clause (2) of the Bengal Tenancy Act and that the presumption afforded by the khatians was also in their favour. He, however, thought that the said presumptions were rebutted by the document (Ex. I) which had been filed on behalf of the-plaintiff and by the fact that the defendant Kashi Chandra Chakerbarty who is said to have purchased the taluk from one Gobinda Dhupi and whose name the taluk, bears did not offer himself for examination and the kobala by which the purchase was made was not produced.
12. The appellants urge that the document Ex. I is not admissible in evidence, that at any rate its evidentiary value is very little as against him, that no adverse inferences should have been drawn from the non-examination of Kashi Chandra Chakerbarty who was a very old man at the time of the proceedings and who is now dead, and they have put in an application praying; that the kobala which they are now in a. position to file may be taken as additional evidence in the case.
13. These contentions are opposed on behalf of the Respondents on whose behalf reliance is placed on Section 35 of the Evidence Act and the terms of the Regulations under which the document (Exhibit I) in question was prepared.
14. Now, the document Exhibit I is a certified copy of a list which describes itself as follows : 'Paper as per details under Section 48 of Reg. VIII of 1793 and Section 15, Clause (8) of Reg. VII of 1799 relating to 10 annas, 13 gandas, 1 kara, 1 krant share of Perganah Amaradad, District Bhulua, dated the 15th Pous 1242 B.S. (29th December 1835).' It therefore is a certified copy of an extract from the books of the Collectorate in which the papers filed under the provisions of the aforesaid regulations used to be kept or copied. We have not been referred to any statute under which the books in question are kept. It has not been shown to us feat the public servant, whoever he was, who made the entry in the books purported testate a fact in the entry in the discharge of his official duty. It does not also appear that the person who made the entry d so in the performance of a duty specially enjoined by the law. The paper therefore in my opinion does not come under Section 35 of the Evidence Act at all. She section is based upon the circumstance that in the case of official documents entries are made in the discharge of public duty by an officer who is authorised and accredited agent appointed for the purpose. The law reposes such a confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity. The circumstances relating to this entry do not stand these tests. It is likely that the books were kept for the information of the Collector, but that does not make them binding as official records of the facts contained in them. The probative value of this document is to be assessed first of all by the application of the presumption contained in Section 79 of the Evidence Act which would go to prove that it is a correct copy of the entry in the register of the Collectorate; then by the application of the presumption contained in Section 114, illustration (e) of the Evidence Act it may be held that it is a correct copy of the list filed in the Collectorate. We may perhaps go further and assume that the list was as a matter of fact, filed by the party by whom it purports to have been filed. Even then it remains a statement made by a party, and its legal effect or the weight to attach to it would have to be determined by the application of such tests as have to be applied to all other statements. If it is sought to be used as an admission against the party making it, its probative value is considerable. Where it is sought to be used in favour of the party who made it, it must fulfil the requirements of Section 21, Clause (1) read with Section 32 of the Evidence Act or it must be relevant otherwise than as an admission. Taking it at its best it is a list filed by a zamindar, independent talukdar or an actual proprietor of land containing a record of engagements made by him with dependent talukdars who would pay revenue to Government through him. The defendants' taluk does not find mention in this list. We may assume that the plaintiff's predecessor had entered into engagements with all his dependent talukdars, for the defendants do not claim to have ever paid revenue direct to Government; but still the question remains as to whether the omission of the defendants' taluk from that list can be taken as evidence of any value to show that the taluk did not exist at the date when the list was filed. In filing the list the plaintiff's predecessors were making a statement to which the defendants' predecessors were not parties. It does not appear that the statement was made in the latter's presence : nor does it appear that the latter were at all interested in seeing that the taluk was entered in the list. Under the circumstance I am of opinion that the probative value attaching to the list must, if any at all, be of the slightest character, assuming that it is admissible in evidence as corroborative evidence of the plaintiff's denial of the existence of the taluk on the date the list was filed. The plaintiff did not produce the kobala of his purchase or his collection papers.
15. Then as to the inference arising from the non-examination of the defendant Kashi Chandra Chackerburty, I do not think the learned Special Judge was justified in the view that he took that in his old age he felt delicacy to state falsehood and so his son deposed in the case, nor again does the non-production of the kobala carry the matter any further.
16. In my opinion the plaintiff has failed to rebut the presumption which arises in favour of the defendants, and it must be given effect to. I therefore agree in the order which my learned brother has passed and reverse the judgment of the Special Judge and restore that of the Assistant Settlement Officer with costs.