1. This appeal arises out of a suit for the recovery of arrears of rent for the years 1341 to 1344 B.S. The rent was claimed at the rate of 8 maps of paddy per year. The learned Munsif decreed the suit, but on appeal the learned Subordinate Judge held that the real rent was 4 maps of paddy per year and he varied the decree granted by the learned Munsif accordingly. The plaintiff landlord relied on an entry in the finally published record of rights which showed that the tenancy was an occupancy holding and that the rent thereof was 8 maps of paddy per year. The defence was that the rent had never been more than 4 maps of paddy and in support of this the defendants produced a decree of the year 1850 which was pronounced in a suit between the predecessors of the plaintiff and the predecessors of the defendants and which recited that the rent was 4 maps of paddy per year. The learned lower appellate Court has virtually held that by producing and proving this decree the defendants have discharged the burden of rebutting the presumption of correctness attaching to the finally published record of rights, and that the burden was then shifted to the shoulders of the plaintiff whose duty it was to show by positive evidence that the rate of rent had been enhanced subsequent to the year 1850 to the figure of 8 maps of paddy. In dealing with this question, the learned Subordinate Judge has expressed himself as follows:
The question is, whether by the decree in the rent suit, the defendants have been able sufficiently to rebut the presumption of the Cadastral Survey khatian.... The learned lower Court has found that the jama mentioned in that decree is the identical jama of which rent had been claimed in the present suit. But he was evidently of opinion that as the decree was passed so long ago as 1850, there must have been some change as otherwise the jama would not have been recorded as 8 maps in the Cadastral Survey Khatian. But in such a case when the decree was specifically pleaded in the written statement, it was for the plaintiff to prove that there had been such a change in the jama. The best way of doing it would have been by production of his collection papers but the plaintiff abstained from doing so.... It has been held that when both parties adduce evidence the record of rights loses its force when the party relying on it fails to show that there was any foundation for the entry. In the absence of collection papers produced by the plaintiff to show that there was a variation of the jama or other evidence to that effect it was not proper for the learned lower Court to assume that there must have been some change. I am of opinion that the Cadastral Survey record has been sufficiently rebutted by the decree in question.
2. In my judgment this reasoning of the learned Subordinate Judge loses sight of the provisions of Section 115, Ben. Ten. Act, and also of the language of Sub-section (2) of Section 50 of that Act. Section 115 is in these terms:
When the particulars mentioned in Section 102, Clause (b), have been recorded under this chapter in respect of any tenancy, the presumption under Section 50 shall not thereafter apply to that tenancy.
3. Referring back to Section 102, Clause (b) of the Act, we find that according to that provision the record of rights must contain a description of the class to which the tenant belongs and a statement as to whether he is a raiyat holding at fixed rates, an occupancy raiyat or a non-occupancy raiyat. Now, as stated before, this tenancy was recorded in the record of rights as an occupancy holding, and it is not disputed that the rent was liable to enhancement. This being the case it follows from the terms of Section 115 that any presumption indicating that the jama was held at a fixed rate of rent which might otherwise have arisen under Section 50 of the Act was not to apply. Then again the exact language of Sub-section (2) of Section 50 must be carefully read. That section says:
If it is proved in any suit or other proceeding under this Act that either a tenure-holder or raiyat and his predecessor-in-interest have held at a rent or rate of rent which has not been changed during the 20 years immediately before the institution of of the suit or proceeding, it shall be presumed, until the contrary is shown, that they have held at that rent or rate of rent from the time of the permanent settlement.
4. Now, what was the position in the present case? The landlord having proved the record of rights and having relied on the presumption raised thereby that the rent of this holding was 8 maps the tenants attempted to rebut the presumption by producing a fairly ancient decree of the year 1860 which showed that the rent in that year was maps. The production of this decree does not in my judgment fulfil the requirements of Sub-section (2) of Section 50, because under that section in order to raise a presumption that the tenant has been holding at a fixed rate from the time of the permanent settlement the tenant has to show that he and his predecessor-in-interest have held and have continued to hold at a rent or rate of rent which has not been changed during the 20 years immediately preceding the institution of the suit. In this case all that the tenant has shown is that at some time, 75 years before the record of rights was framed and finally published his predecessor-in-interest was holding a jama at 4 maps of paddy per year.
5. In my judgment, the learned Subordinate Judge erred in holding that the production of the rent decree of the year 1850 shifted the burden of proof on to the landlord's shoulders, and that it was his duty to prove from his collection papers or otherwise that actual enhancements of the rent had occurred between the year 1850 and the year 1924 or 1925 when this record of rights was finally published. The record of rights is primarily intended to give finality to a number of questions relating to the incidents of tenancy and including questions of rent and status. Very careful provision has been made by the Legislature to ensure that the entries in the finally published record should be the result of searching and elaborate enquiry. As I apprehended it, it is because of these conditions that the presumption of correctness arises. The rebuttal of this presumption calls for the positive evidence that a state of things other than that depicted in the record of rights actually existed. I cannot hold that a mere production of the decree of 1850, amounted in the circumstances of the present case, to evidence sufficient to rebut the presumption that the record of rights was correct. The tenant defendant having failed to rebut this presumption there was no onus whatsoever upon the landlord plaintiff to prove by other evidence that the rent had been enhanced between the year 1850 A.D, and the year 1840 B.S.
6. In connexion with Section 115, Ben. Ten. Act, my attention has been drawn to certain observations of Suhrawardy J., in Rash Behari v. Dwarka Nath ('23) 10 A.I.R. 1923 Cal. 365 at p. 940. 'With these observations I respectfully agree, and as they have a direct bearing upon the argument addressed to me by the learned advocate for the appellant it is desirable that I should quote them:
As I read, Section 115, Ben. Ten. Act, it provides against clashing of presumptions. It will not permit the presumption under Section 50 of the Act, to override that raised from the record of the particulars under Chap. 10. The marginal note against the section lends support to this view.
7. In this connexion see also the cases in Prasanna Kumar Sen v. Durga Charan ('22) 9 A.I.R. 1922 Cal. 146 and Govinda Priya Chowdhurani v. Ratan Dhupi ('06) 4 C.L.J. 37. On behalf of the respondents in this appeal reliance has been placed upon Bhola Nath Dutta v. Narayan Kumari Dassi : AIR1940Cal588 which was a decision of a Judge sitting singly. In regard to this case, it is sufficient to observe that the decree upon which reliance was placed for the purpose of rebutting the presumption arising from the record of rights was a decree which determined the condition of things after the final publication of the record of rights, and not as in the present case an ancient decree which was obtained many years prior to the framing of record of rights. On behalf of the respondents, it was finally urged that if indeed rent had been enhanced between 1850 A.D. and 1340 B.S., Section 29, Ben. Ten. Act, has to be considered. Clause (b) of that section prohibits enhancement at any given time from being more than two annas in the rupee of the rent previously payable by the raiyat. Now, as already observed, the decree of 1850 was 74 or 75 years prior to the date of the final publication of the record of rights, and it is therefore not improbable that the rent of this particular jama was enhanced more than once in the intervening years. In view of what I have already said in regard to the incidents of the burden of proof, it is not for the landlord to show that the enhancements, at whatever time they may have been made, were within the limits prescribed by law.
8. The result is that the appeal succeeds. The decision of the learned lower appellate Court is set aside and the decree of the learned Munsif is restored. The appellant is entitled to his costs throughout.