of reference to a Pull Bench:
20. This case, in consequence of a difference of opinion on the part of the two learned Judges before whom it came in the first instance, has been referred to me, under Section 575 of the Code of Civil Procedure, in order that I may deliver my opinion thereon; and as the case has been argued fully and ably by the learned Vakils who appeared, and the view I hold will necessitate a reference to a Full Bench, no object will be attained by my reserving judgment or elaborating my reasons.
21. The point for decision is, whether the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates.
22. The facts of the case are fully set forth in the judgments of Beverley and Ameer Ali, JJ., and it is not necessary that I should recapitulate them now, but I would state that on the part of the appellant it has been conceded before me that the facts proved do give rise to the presumption contained in the 2nd Sub-section of Section 50 of the Bengal Tenancy Act. Now that Act is stated to be one passed for the purpose of amending and consolidating certain enactments relating to the law of landlord and tenant within the territories under the administration of the Lieutenant-Governor of Bengali; and by Section 4 a description, rather than a definition, is given of the classes of tenants to whom the Act is a applicable, among who are divided into the following classes:
(a)Raiyats holding at fixed rates.
The same Section defines 'raiyats holding at fixed rates' by providing that the expression means 'raiyats holding either at a rent fixed in perpetuity or at a rate of rent fixed in perpetuity.
23. The next section to which I may refer is the 18th, which describes the incidents of holding at fixed rates, and then I come to Section 50 upon which the present case turns, and whereby it is provided that.
1. Where a tenure-holder or raiyat and his predecessors in interest have held at a rent or rate of rent which has not been changed from the time of the Permanent Settlement, the rent or rate of rent shall not be liable to be increased except on the ground of an alteration in the area of the tenure or holding.
If it is proved in any suit or other proceeding under this Act that either a tenure-holder or raiyat and his predecessors interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the institution 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.
24. The expression 'predecessors in interest,' it is argued on the part of the defendants, is a strong indication in favour of the view they support. But I am unable to attach much importance to its use except to the extent that it is consistent with the construction for which they contend. But I think it is clear from the proviso to the second Sub-section that it was in the contemplation of the Legislature that a tenancy to which the presumption would be applicable should be capable of registration under a system which provided for the registration of tenancies, or classes of tenancies, at fixed rents or rates of rent; and the inference I draw from that is that a tenancy to which the presumption is applicable may be aptly described as one held at fixed rates.
25. The matter, however, does not rest there, for under Section 102, provision is made as to the particulars to be recorded in records of rights and settlements of rent. By Sub-section (b) it is provided that the particulars to be recorded shall include 'the class to which the tenant belongs, that is to say, whether he is a tenure-holder, raiyat holding at fixed rates, occupancy-raiyat, non-occupancy-raiyat or under-raiyat, and if he is a tenure-holder, whether he is a permanent-tenure-holder or not, and whether his rent is liable to enhancement during the continuance of his tenancy.'
26. It would seem that non-liability to enhancement was regarded for obvious reasons as a matter proper to be recorded; but there is no provision which requires or permits such a record in the case of a raiyat unless it be by the entry in the record of the fact that he is a raiyat holding at fixed rates, and it appears to me to be the intention of the Sub-section that the immunity from enhancement arising under Section 50 should be recorded by the statement that the tenant was a raiyat, holding at fixed rates. In connection with this section I may refer to Section 115, which provides that ' 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,' for it appears to me that this section also points to the same conclusion.
27. Further looking outside the Bengal Tenancy Act, 1885, one finds that the expression 'raiyats holding at fixed rates' was one in use before that Act came into operation, for it appears both in Act X of 1859 and also in the Bengal Council Act VIII of 1869. I may particularly refer to Sections 3, 4 and 5 of both those Acts. Sections 3 and 4 correspond closely with Sub-sections 1 and 2 to Section 50 of the Bengal Tenancy Act of 1885, and it will be seen from Section 5 of those Acts that the raiyat in whose favour the presumption operated would be properly described as one holding at fixed rates. My own opinion, therefore, apart from authority, would be that upon the construction of the Act the record of the Assistant Settlement Officer was properly made.
28. I have, however, been referred to a prior decision of this Court where the same question arose, and it was there said in the course of the judgment:
We entertain grave doubts whether this class of raiyat [that is raiyat holding at fixed rates] can be created by the operation of Section 50. All that that section says is that a raiyat who has held at the same rent or rate of rent since the time of the Permanent Settlement shall not be liable to have his rent increased except on the ground of an alteration in the area of the holding. It does not say that such a raiyat is a raiyat holding at fixed rates, or that the tenancy shall be subject to the incidents of a holding at fixed rates as prescribed by Section 18 of the Act.
29. The learned Judges there appear to have arrived at their decision not without 'grave doubts,' but still it is a decision which clearly covers the present case, and it will, therefore, be necessary to refer the matter to a Full Bench. The question referred is whether, having regard to the case cited, the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates.
30. Babu Raghunandan Prosad (for Babu Umakali Mukerjee) contended on behalf of the appellant that the raiyats were not entitled to the status of a raiyat at a fixed rate by merely showing that they paid uniformly for twenty years. The case of Bansi Das v. Jagdip Narain Chowdhry (1896) I.L.R. 24 Cal. 152 is in my favour, and that is a case referred to in the order of reference.
31. Supposing the raiyat proved uniform payment for twenty years and was entitled to the presumption that he held from the Permanent Settlement at that rate, would any Court be justified in holding as a matter of fact that he does not hold at fixed rates
32. Is it not a natural inference of fact?
33. Your case, I suppose, is that there must be an agreement
34. Yes.---The tenant does not plead any agreement to hold at a fixed rate. Mere uniform payment for twenty years does not make him a 'raiyat at fixed rent.' Section 21 does not confer the right, and there is no other section conferring it. The statute should not be interpreted to confer a right which has not been expressly given. The case of Norendra Nath Sircar v. Kamal Basini Dasi (1896) I.L.R. 23 Cal. 563 lays down the rule.
35. Babu Horendra Narayan Mitra (for Babu Satis Chandra Ghose) who appeared for the respondent was not called upon.
36. The judgments of the High Court (Maclean, C.J., and Macpherson, Trevelyan, Ghose, and Ameer Ali, JJ.) were as follow:
37. The question we have to decide is whether the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates. There was a difference of opinion between Mr. Justice Beverley and Mr. Justice Ameer Ali upon the point, and the case was referred to Mr. Justice Jenkins, who took the same view as Mr. Justice Ameer Ali, and referred the case to a Full Bench. As, however, it has been decided that a Judge of the High Court, sitting alone, has no power to refer a case to a Full Bench, the case has to be dealt with by the present Court, which has been specially constituted to hear it. For my part I think that the conclusion at which Mr. Justice Ameer Ali and Mr. Justice Jenkins arrived is the correct one, and I do not think I can usefully add anything to what they have said in their judgments. In my opinion the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates and the present appeal must be dismissed with costs. There will be no costs of the abortive reference.
38. I also think that the view taken by Mr. Justice Ameer Ali and Mr. Justice Jenkins is correct; when the question is whether a raiyat holds at a fixed rent, that is to say, whether the rent or rate of rent was fixed in perpetuity, and the raiyat proves that he had held the land at an -uniform unchanged rent or rate of rent for, say, a hundred years, the Court would, I think, be justified in presuming, apart from any statutory enactment, that the rent was fixed in perpetuity. In Sub-section 2 of Section 50 of the Bengal Tenancy Act the Legislature apparently recognise the difficulty a raiyat might have in proving that the rent was unchanged for any such length of time, and it provides on proof of certain facts for the presumption which might in my opinion be made if in fact the finding of the Court was that the rent had been unchanged since the time of the Permanent Settlement.
39. I agree in thinking that the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates, and I prefer to place my decision entirely upon the terms of clause 2 of Section 50 of the Bengal Tenancy Act. It having been proved in this case that these raiyats held at a rate of rent which had not been changed during the twenty years immediately before the institution of the suit or proceeding, it ought to be presumed, in accordance with the provision of that clause, that they have held at that rent or rate of rent from the time of the Permanent Settlement. It seems to me, as Mr. Justice Macpherson pointed out, that the fact that they held at that rent or rate of rent, raises in fact the presumption, apart from the Act, that the original contract was a contract to hold at fixed rates, and it would be evidence from which any judge of fact could reasonably presume that there had been such a contract. That is what has been done in this case. I, therefore, agree in thinking that the Settlement Officer was right in what he did.
40. I agree in thinking that the question referred to us should be answered in the affirmative.
Ameer Ali, J.
41. I gave my reasons very fully on the previous occasion for holding that the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates, and I have nothing more to add.
42. The appeal will be dismissed with costs, including the costs of all the hearing's in this Court.