M.N. Mukerji, J.
1. This is an appeal which arises out of proceedings under Section 105 of the Bengal Tenancy Act. The tenant-defendant is the appellant before us. The holding to which these proceedings relate was recorded in the finally published record-of-rights as being assessable to rent, and the landlord instituted this proceeding for the purpose pf having a fair and equitable rent settled in respect of it. The Assistant Settlement Officer came to the conclusion that the existing rent, that is to say, the rent of Rs. 7-2-9 pies together with an enhancement of 1 anna 6 pies in the rupee would be the fair and equitable rent for the plaintiff in question. There was an appeal to the special Judge and the learned Judge disposed of the matter in these words : 'The tenancy was in this case shown in the record-of-rights as an ordinary occupancy holding. The tenant had, therefore, to show that it was mokarrari. Only three dakhilas for 1299, 1311 and 1323 had been filed by him and between them there are big gaps of twelve years. What was the rent in these twelve years it has not been satisfactorily proved, and I am unable to hold that the Revenue Officer was wrong if he was not satisfied that the rent was uniform for twenty years before suit.'
2. Now, the appellant relied upon the presumption mentioned in Section 50, Clause (2) of the Bengal Tenancy Act and the learned Judge seems to have refused him the benefit of that presumption by reason of the fact that only these dakhilas one dated 1299, another dated 1311, and the third dated 1323, had been pressed by him. His view was that, inasmuch as there were two intervening periods of twelve years each between the dates of these dakhilas with regard to which no other document was produced, the appellant was not entitled to the presumption which arose in his favour under Section 50 Clause (2) of the Bengal Tenancy Act. We have looked into the dakhilas produced by the appellant and it seems to us that the ground upon which the learned Judge refused to give the benefit of that presumption cannot be supported. These dakhilas no doubt, are for different years as already observed, and no doubt there were intervening periods of twelve years between the first two and the second and the third : but the first two dakhilas appear to have been granted to the tenant Tarachand Santra, and the third one is in the name of the same tenant as being a deceased tenant in respect of the holding. The rent appears to have been mentioned in all these dakhilas as being the same. The quantity of land mentioned in the dakhilas also appears to be the same. In the absence of anything to show that there was any change in the tenancy or that during these intervening periods there was any alteration in the rent, the learned Judge, in my opinion, should not have held that the appellant was not entitled to the presumption which arises under Section 50 Clause (2) of the Bengal Tenancy Act.
3. On behalf of the respondent, it has been urged before us that the appellant cannot rely upon the presumption inasmuch as he is a purchaser of the holding which has been recorded in the record-of-rights as an ordinary occupancy holding. With regard to this matter, it would appear that the proceedings under Section 105 of the Bengal Tenancy Act were originally instituted in the name of the original tenant, and thereafter the appellant was brought on the record as a purchaser from the original tenant, and the proceedings went on against him at the instance of the landlord. Therefore, he cannot be said to be in a worse position than the original tenant. Consequently in my opinion, he also is entitled to rely upon the presumption arising from Section 50, Clause (2) of the Bengal Tenancy Act. Inasmuch as he is entitled to the benefit of this presumption and inasmuch as there does not appear to be any evidence to the contrary, I would allow the appeal and set aside the decision of the Courts below, and hold that it has been proved in this case that the rent of the holding is not liable to increment except on the ground of alteration in the area - a matter which has not been found in favour of the landlord. This decision is to be taken as limited to plot No. 405 which was found by the, Assistant Settlement Officer as constituting a separate holding of 2 Bighas 10 Cottas 7 Chitaks of land bearing a rental of Rs. 7-2-9 per annum.
4. No order is made as to costs.
5. I agree.