1. These two appeals arise out of two suits for recovery of rent, with a prayer in the alternative for assessment of fair and equitable rents and for recovery of rents thus assessed for the period in suit.
2. A preliminary objection has been taken that under Section 153 of the Bengal Tenancy Act no appeal lies. It appears to me that that Section is not applicable, as this is not merely a suit instituted for recovery of rent, as the plaintiff seeks in the alternative other relief, that is, for assessment of fair and equitable rent. An authority for this view will be found in the case of Lala Dharuk' dhari Lal v. Baburam Ahir 4 lnd. Cas. 745; 10 C. L. J. 629. As regards the merits of the case it is Contended, and tee contention appears to me to be sound, that the lower Courts have erred in law as regards the evidentiary value of certain partition papers under the Estates Partition Act
.3. As regards the entries, the learned Subordinate Judge says: 'The Partition Deputy Collector has no authority to assess any rent.' This is incorrect, as Section 44 gives him the power of an officer empowered to prepare the Record of Rights under Chapter X of the Bengal Tenancy Act. The entries in these batwara papers are some evidence of the existence of the relationship of landlord and tenant between the parties and also some evidence as to the rents payable by the defendants if that relationship exists. Whether the presumption arising from these entries has been rebutted or not is a question which a Court of fact must decide, But the Subordinate Judge was not justified in saying that the rents could not be assessed without a local enquiry if the presumption in the plaintiff's favour had not been rebutted by other evidence.
4. For the respondent in Appeal No. 1360, it is contended that the plaintiff's own evidence, Exhibit No. 1, shows that there was a tenure between the defendants and the plaintiffs. Whether this is so or not I express no opinion, as that is a question which will have to be decided by the lower Appellate Court.
5. These two appeals are decreed, the judgments and decrees of the lower Appellate Court are set aside add the cases remanded to that Court for a re-hearing and disposal in accordance with the observations I have made.
6. Costs of these appeals abide the result of the re Hearing.