S.K. Ghose, J.
1. This appeal arises out of a suit relating to certain lands which were recorded in the finally published Record of Eights as forming an under-raiyati tenancy of the defendants under the plaintiff with a right of occupancy and a rent of Rs. 14-5-6. The plaintiff sues for a declaration that the rent is. Rs. 62 per annum and that the defendants have no right of occupancy. The defence is that the record is correct and that in any case the plaintiff is not entitled to the relief, as he has dispossessed the defendants out of 183/4ths cottas of land by letting them out to one Kashi Nath Biswas. The trial Court found that there-was dispossession as alleged by the defence and dismissed the suit, holding that the plaintiff is not entitled in equity to any relief in the suit. On appeal the learned Subordinate Judge thought that whether there was dispossession or not the plain-tiff was entitled to sue for the declaration as prayed for by him. He held that the Plaintiff was debarred in law from re-covering more than the khatian rent. But as regards the defendants' occupancy right he held that the Record of Eights was incorrect. Accordingly he gave the plaintiff a modified decree. The present appeal is by the defendants.
2. The point in this appeal is whether the learned Subordinate Judge is right in holding that the Record of Rights containing the entry that the defendants have right of occupancy is incorrect It contended on the other side that this is a finding of fact which is binding on this Court and reliance is placed on the decision in the case of Midnapore Zamindary Co. Ltd. v. Secy. of State A.I.R. l929 P.C. 286. But the argument on behalf of the appellant is that the learned Subordinate Judge wrongly placed the onus of proof upon the defendants and that that is no doubt a point of law. The learned Subordinate Judge says in his judgment;
As regards the other declarations, an under-raiyat may acquire a, right of occupancy by local custom or usage but no satisfactory evidence of this custom or usage was adduced by the defendants and the Court is left without materials which defendants came to be recorded as having a right of occupancy in the lands in suit.
3. It is pointed out that this is throwing the burden of proof upon the defendants, whereas the defendants have the presumption of correctness in their favour. Undoubtedly that is so, and because the plaintiff is challenging the Record of Rights it does not follow that the record may not be presumed to be correct. On the other hand, the onus is upon the plaintiff to prove that the defendant. have not acquired an occupancy right by custom: see the cases of Lakhi Nath Bera v. Nabadwip Chandra Nandy : AIR1927Cal268 , Bepin Behari v. Trailakya Nath : AIR1927Cal933 and Abdul Hamid v. Yakub Ali : AIR1930Cal315 . It is contended in behalf of the respondent the question of onus is immaterial because as a matter of fact the learned Subordinate Judge has considered the evidence that has been adduced by the plaintiff. No doubt the Subordinate Judge referred to the kabuliyats, Exs. 1 and 1-A. These kabuliyats cannot confer occupancy right, but it is contended that they are inconsistent with the existence of the occupancy right, for Ex. 1 is a kabuliyat by which the lands were first taken settlement of in 1289 for ten years and Ex. 1-A was a kabuliyat of 1308 B.S. by which the lands were again taken settlement of for five years. It is pointed out that the latter kabuliyat is mentioned in the Record of Rights. It does not follow that the Revenue Officer relied on that kabuliyat as proving the existence of the occupancy right by custom. In fact that could not be the case. But he made a note of that kabuliyat, because it so happened that the tenant was in possession at that time by virtue of that kabuliyat. The contention on behalf of the respondent is that, if by virtue of the kabuliyat of 1289 the tenant had already acquired an occupancy right in 1308, he would not again take a lease of five years by the second kabuliyat Ex. 1-A. But it appears that the previous kabuliyat was by one Giridhari and the second kabuliyat was by his sons. There is no evidence to show that the tenancy was heritable, or that the sons had acquired right from Giridhari. It is possible, as the learned advocate for the appellants suggested, that since the second kabuliyat the tenant has acquired the occupancy right which was recorded in the Record of Rights and the fact that a temporary lease was taken by the second kabuliyat is not inconsistent with the second lessees having subsequently acquired the occupancy right by custom.
4. The learned Subordinate Judge also refers to the plaintiff's interest being mukarari raiyati as per khatian. But that does not advance the case any further. The evidence which the learned Judge has considered only shows that the defendants are under-raiyats, but he says nothing at all on the question of custom and he does not find that there is no custom by which the under-raiyat could acquire occupancy right. In fact there was no evidence on this point. The position therefore is that the learned Judge started with the notion that it was for the defendants to prove that there was a custom by which an under-raiyat could acquire an occupancy right; in other words, that the onus of proof was upon the defendants, which certainly was not the case. That being so, it cannot be said that the finding that the Record of Rights is incorrect is a finding which cannot be challenged in second appeal. On the contrary the finding amounts to an error of law. In the view that I have taken it must be held that the presumption of correctness in favour of the Record of Rights stands and the suit must be dismissed.
5. The result is that the appeal is allowed, the judgment of the lower appellate Court giving the plaintiff a modified decree is reversed, and that of the Court of first instance is restored. The appellants will got their costs of this Court as well as of the lower appellate Court.