1. In the suit out of which-this appeal has arisen the plaintiffs sought to eject the defendant on the allegation that he was an under-raiyat and notice has been duly served upon him. The defendant resisted the claim on the ground that he was not an under-raiyat but that his status was that of an occupancy raiyat and that notice had not been duly served and that he was not liable to be evicted. He further pleaded that the land in suit was not a. complete-holding but it formed part of a larger holding of which the jama was Rs. 9-4. He raised various other objections which, it is not necessary to deal with.
2. The first Court decided this case in favour of the plaintiffs. He held that the defendant was an under-raiyat and further that he was precluded by Section 104J of the Bengal Tenancy Act from giving evidence that his holding forms part of a larger holding. In appeal to the District Court this finding was upheld and the appeal was dismissed.
3. The defendant has appealed to this Court and the only ground urged in support of this appeal is that the Courts below were wrong in holding that the terms of Section 104J and Clause (d) of Section 104H of the Bengal Tenancy Act precluded him from giving evidence as to the fact that this holding from which he was sought to be ejected forms part of a larger holding. It is quite clear that the view taken by the lower Courts holding that the defendant was precluded from giving evidence that the holding in suit forms part of a larger holding is not correct. The point was decided in the case of Priya Nath Basu v. Sarat Chand Moral : AIR1924Cal341 , a decision to which I myself was a party where it was held that an entry as lip area in the Record of Rights was not conclusive under Section 104J of the Bangal Tenancy Act. and that such entry could only be presumed to be correct under Section 103B until the contrary is proved by evidence.
4. In this view of the case the case must go back to the lower appellate Court and the learned Judge will have to consider whether the presumption which arises under Section 103 B as to the correctness of the statement of the area of the holding has been rebutted by the evidence. If he finds that the presumption under Section 103B of the Bengal Tenancy Act as to the correctness of the area has been rebutted by evidence he will dismiss the suit otherwise the appeal will be dismissed. The appellant is entitled to his costs in this Court. The costs of the lower Courts will abide the final result.
5. I agree.