1. In this case, the appeal is brought from a judgment and decree of my learned brother Mitter, J. sitting in second appeal. The case is this : The plaintiff brought his suit to eject the defendants on the footing that the defendants were under-raiyats to whom notice to quit had been given. The suit was brought under Section 49-B, Ben'. Ten. Act.
2. The view taken by the Munsiff was that the service of notice to quit was proved. He also dealt with a defence to the effect that the defendants were-persons who had acquired by custom an occupancy right, notwithstanding that they were only under-raiyats and not raiyats. On that point, the Record-of-Rights was in favour of the defendants. It was finally published in the year 1918. The Munsiff held that the evidence adduced before him was sufficient to disprove the Record-of-Rights and that there was enough to enable him to say that the entry that the defendants had occupancy right was erroneous.
3. The matter went on appeal to the learned Subordinate Judge. The learned Subordinate Judge held that it was not proved that the notice to quit had been served and he further held that it was not shown by the evidence that the Record-of-Rights was wrong as regards the entry that the defendants had occupancy right.
4. On second appeal to this Court, my learned brother Mitter, J. considered that the judgment of the learned Subordinate Judge in which he held that the evidence of service of the notice to quit was unsatisfactory was not a proper judgment or method of dealing with the case. The judgment certainly was very short and summary and the learned Judge in this Court regarding that as unsatisfactory directed a remand on that question. It appears to me to be unnecessary for this Court to deal with that question and I do not desire to be understood as differing in any way from the view taken, by Mitter, J.
5. The question and the main question, however, is whether or not the defendants' defence of occupancy right is a good defence to the suit. On that point the Record-of-Rights is in favour of the defendants. Mitter, J. took the view that the entry in the Record-of-Rights was based and it would seem, as he thought, solely based upon the terms of a registered kabuliyat a reference to which was made in the remarks column of the khatian. The registered kabuliyat was dated December 1901. He came to the conclusion that this registered kabuliyat by its terms would not confer a right of occupancy. He dealt, therefore, with the khatian on the basis that it had been shown that the only materials before the Settlement Officer did not justify the entry and, in that way, he held that the Record-of-Rights had been disproved. He would not appear to have been quite satisfied with the way in which the learned Subordinate Judge dealt with the evidence upon the question whether the Record-of-Rights could be rebutted and, in sending the matter back on remand, his language distinctly suggests that it will be for the lower appellate Court on remand to consider whether the defendants have given positive proof of the custom to the satisfaction of that Court. On this question, I much regret that I am unable to see eye to eye with the learned Judge. In the first place, it appears to me that there is no evidence to prove that the entry as to the right of occupancy is based at all let alone solely, based, upon the terms of the registered kabuliyat of 1901. It is said that that kabuliyat does not purport to give a right of occupancy, but it is said that there is something in it which gives a colour to the suggestion that it purports to give a right of occupancy. It is quite certain that no kabuliyat can grant a right of occupancy but it has been pointed out that there may be something in a document which is evidence, by way of admission or otherwise, of a right of occupancy, in my judgment, it is not only speculation but is, to some considerable degree, improbable to say that the entry as to the right of occupancy is based upon this kabuliyat. I find as a matter of fact that another under-raiyat of the plaintiff in this very same village is also recorded in the same way as enjoying a right of occupancy and, in the remarks column, the word 'oral' is put showing that there is no question of the holding being governed by a written document. In these circumstances, it seems to me that the judgment of the learned Judge of this Court cannot be supported.
6. The next question is whether the lower appellate Court has properly dealt with the evidence as to the existence of the alleged custom. When it is recorded in the Record-of-Rights that a certain person being an under-raiyat has a right of occupancy, it must be presumed that that right of occupancy has been acquired by him under and by virtue of a custom. What that custom is, its exact terms and so forth does not appear on the face of the khatian; but it appears to me that it is for the plaintiff to show that that entry to the effect that the tenants have a right of occupancy is erroneous. A case has been cited to us1 Jagdeo v. Baldeo A.I.R. 1922 P.C. 272 at 48 (of 2 Pat.) on the strength of which we are invited to hold that, the presumption being that there is no right of occupancy on the part of an under-raiyat, the entry in the Record-of-Rights is not a thing which has to be overthrown but is itself overthrown by the initial presumption and that, therefore, the defendant in whose favour the entry is made is really in no better position than if that entry had not been made at all. That may or may not be a good criticizm of the logic of the case cited to us; but it is quite clear in my judgment, that that cannot be the law as regards the particular matter with which we are now concerned. It appears to me quite clear that the plaintiff in this case, when he wants to eject the defendants who have got this entry in their favour, hag to show in one way or another that the entry is wrong. He produced seven khatians belonging to this village. He showed that they were cases of under-raiyats. He showed that they were all under-raiyatis 20 to 30 years old and he pointed out the fact-that these particular under-raiyats were not recorded as having a right of occupancy. This fact impressed the Munsiff very much because he thought that the plaintiff's evidence showed that these under-raiyatis having lasted for more than 12 years the under-raiyats were bound to be vested with occupancy right if the custom, as alleged, was true in that particular village.
7. Now, in coming to that conclusion, the Munsiff, it seems to me, made a mistake because he forgot that the particular person in occupation at the time of the Record-of-Rights would have to be shown to have been in occupation himself for a time sufficient to satisfy the custom unless indeed it could be shown that the custom in the case of this village included a custom which made occupancy right heritable. That being so, the seven khatians adduced in evidence by the plaintiff in no way disprove the custom and we have to examine the rest of the evidence to see whether the lower appellate Court's view ought to be interfered with. The lower appellate Court thought that the evidence on either side was very meagre and that Court also found that the plaintiff as regards this village was unable to give an instance of an under-raiyat who had been ejected. In these circumstances, that Court thought that, on the evidence, it was wrong to say that the Record-of-Rights had been rebutted or should be interfered with. The evidence was scanty and highly inconclusive. In these circumstances, it was not prepared to interfere with the Record-of-Rights. It appears to me that that was quite a sound reason.
8. There is a further point to which our attention has been directed. It has been pointed out in a very able argument that in 1919 a suit was brought by the plaintiff against these defendants under Section 66, Ben. Ten. Act. Section 66, Ben. Ten. Act is not applicable to occupancy raiyats. It does not in its terms profess to be inapplicable to under raiyats having right of occupancy. It is said that, if an under-raiyat has a right of occupancy, it cannot be that he is liable to be ejected for mere non-payment of rent. To my mind, these are not questions that can be readily decided. Whether an under-raiyat with an occupancy right can be ejected under Section 66 or not, I do not propose to decide. What happened in this case was that one of the defendants filed a written statement which is not put in evidence in this case. That defendant who appeared asked for time when the case came on for hearing. In the end, he was given a little time and untimately he did not appear at all. The case went ex parte against him and there can be no doubt that rent was due. The form of the decree was that if he did not pay the rent in so many days, he was liable to be ejected. He did pay the rent and he never was ejected an it is said now that because that was a proceeding under Section 66, because the form of the decree was that if he did not not pay he was liable to be ejected, that is conclusive against him to the effect that he has no right of occupancy or, at all events, it is evidence which the lower appellate Court should have regarded as sufficient to overthrow the entry in the Record-of-Rights. In my judgment, that contention cannot be acceded to. I am not satisfied in the anomalous state of the law that the defendant had a defence under Section 66, Ben. Ten. Act. But, in any case, what happened was that he was ordered, to pay his rent and he did pay. If the question be a question of evidence, it appears to me that, the conduct and the circumstances of the parties being what they were, the form of the decree given in that case is worth little or nothing as evidence on the question of fact as to occupancy right, it being remembered that this right had been solemnly recorded in the khatian a year before the suit was brought. Whether rightly or wrongly recorded it was obviously recorded in the interest of the tenants and presumably not without their knowledge. In all the circumstances, I am of opinion that in this case no mistake in law has been made by the lower appellate Court in dealing with the question whether the entry as to occupancy right has been disproved or not.
9. That being so, the plaintiff's suit necessarily fails and, in my opinion, we should allow this appeal, set aside the decree of my learned brother Mitter, J. and restore the decree of the lower appellate Court with costs of this Letters Patent Appeal and before my learned brother Mitter, J.
10. I agree.