1. This appeal has arisen out of a suit for declaration of title and recovery of possession in respect of a piece of land. The land was recorded in the Record-of-Rights as comprising a tenancy held by the defendants. The certified copy of the Record-of-Rights which has been filed on behalf of the defendants shows that the area of the land is 113 acres and that it consists of a homestead, some ditches and a tank. In the column provided for recording the present rent there is a word which the learned Subordinate Judge felt considerable difficulty in reading. According to him, it may be read as binakar nishbar or ninakar though the last word is not one that is to be found in the dictionary. The learned Judge also says that the word may as well be read nankar or service tenure as was suggested on behalf of the plaintiff. From the plaint, however, it appears that the plaintiff's case was that the tenancy was a binakar chakran tenancy, that is to say, a chakran tenancy held without payment of rent. In the column in which the status of the tenant has got to be recorded the words 'settled raiyats' appear. The plaintiff's case was that the defendants and their predecessors were charkan tenants holding without payment of rent, that they were bound to render services to the plaintiff and that recently they had refused to render such services and consequently the plaintiff instituted the suit for declaration of title and recovery of possession. The defendants on the other hand alleged that their predecessors formerly held the land on payment of rent of 14 annas per year but that the said rent was remitted on account of certain services which their predecessors had rendered to the plaintiff's predecessor. They endeavoured to support this defence of theirs by a letter dated 1849 which purported to state the fact that the defendants' predecessors were paying, rent at 14 annas per year but that the said rent was remitted. This letter has been found by both the Courts below as being a fabricated document and it is not necessary to refer to it again in the course of this judgment. The Munsiff held that according to the Record-of-Rights, the defendants were settled raiyats and that inasmuch as certain other entries from the Record-of-Rights had been filed showing that the defendants were occupancy raiyats in respect of other lands in the village they were also occupancy raiyats in respect of this particular tenancy and that the incidents of this tenancy were to be governed under the provisions of Section 182, Bengal Tenancy Act, by those provisions of the Act which deal with occupancy raiyats. He held also that this presumption was not rebutted by anything which the plaintiff had produced and he therefore, dismissed the suit.
2. The Subordinate Judge held that the Record-of-Rights had a presumptive value but that the entry in it was vague and was proved to be '-incorrect. He held further that the plaintiff had succeeded in proving that the defendants held 'the tenancy as a chakran 'tenancy and not in raiyati right. On these findings the learned Subordinate Judge decreed the suit. The defendants then 'preferred' a second appeal to this Court which was dealt with by my learned brother Cammiade, J. He held that the Subordinate Judge had not properly dealt with the Record-of-Rights and had omitted to take into consideration its exact import and significance and that he had not appreciated the true position which was to the effect that the defendants were according to the Record-of-Rights, raiyats and not merely settled raiyats of the village. He held further that the evidence which the plaintiff had adduced for the purpose of rebutting the Record-of-Rights was more or less in admissible being statement of the opinion of the witnesses 1 who were examined in the case and that the said evidence was not sufficient to rebut the presumption. In this view of the matter Cammiade, J. allowed the appeal, set aside the decision of the learned Subordinate Judge and restored the decision of the Munsiff. The plaintiff has preferred this Letters Patent appeal.
3. The substantial contention that has been urged in support o the appeal is to the effect that inasmuch as the learned Subordinate Judge held that the presumption arising from the entry in the Record-of-Rights had been rebutted this finding amounted to a finding of fact which should not in view of the circumstances of the Case have been interfered with by this Court in second appeal. On reading the judgment of the Subordinate Judge, it seems to ma that both in his appreciation of the effect of the presumption and in his treatment of the evidence that was adduced for the purpose of rebubting the same the learned Judge was in error.
4. As regards the presumption its effect according to the learned Subordinate Judge was considerably minimised by reason of the fact which he referred to in his judgment in the following words:
Defendant 2 had a relative in the settlement office. He was his uncle-in-law, Kamal. Plaintiff's suggestion that taking advantage of this state of confusion this entry of 'settled raiyat' was secured, cannot, therefore, be brushed aside as absurd.
5. The learned Subordinate Judge in my judgment was entirely wrong in referring to this matter at all. The plaintiff nowhere in his plaint or even in the evidence that he adduced in support of his case made any distinct; case to the effect that the entry in the Record-of-Rights was fraudulently made and barring one single statement in the deposition of one of the witnesses examined by him which was to the effect that defendant 2 had a relative named Kamal in the settlement office there is absolutely nothing to indicate that it was ever the intention 6f the plaintiff to make a case to the effect that the Record-of-Rights was fraudulently made. Indeed, upon a perusal of the record, it does not appear that the defendants had any notice whatsoever that any such allegation was going to be put forward on behalf of the plaintiff. This entry therefore must be regarded just as any other entry in any other Record-of-Rights. With this idea in mind that the Record-of-Rights was somehow or other not correctly made the learned Subordinate Judge proceeded to consider whether the entry, had been rebutted or not.
6. As regards the presumption there is also another matter to be considered. In the opinion of the learned Subordinate Judge as I have already stated in the column where the present rent has to be recorded the word that is written may be differently read. But then the plaintiff himself in his plaint clearly stated that the defendants were ninakar chakran tenants and the suggestion that was put forward in the course of the trial that the word might fee read in any other way, for instance, as nishkar, ninakar or nankar should not have been accepted at all by the learned Subordinate Judge. Moreover from another certified copy of the same entry that was produced before us in the course of the hearing of this appeal, there cannot be the slightest doubt whatsoever that the word should be area as binakar. The learned Sub-ordinate Judge says that the entry is a vague one probably because of the difficulty in reading this particular word. It may also be that in the opinion of the learned Subordinate Judge the entry was not inconsistent with the tenancy being a chakran one. If that was his view then again he was not Tight because on the record there are a number of entries with regard to other tenancies clearly showing that those tenancies are chakran. Whether the tenancies are chakran tenancies or not they have not been so recorded in the Record-of-Rights. Therefore, there was nothing vague with regard to the entry that we have before us and if it was inconsistent with the tenancy being charkan one as in my opinion it was, then this presumption had to be regarded as any presumption with regard to any other entry. The learned Subordinate Judge in my opinion was not right in appreciating the effect of the presumption which arises upon the entry in this particular case.
7. Now, as regards the evidence that was adduced for the purpose of rebutting this presumption the learned Subordinate Judge has dealt with it in a passage in his judgment which to my mind seems to be extremely unsatisfactory, tie says this:
I sea no reason to disbelieve : the evidence of a number of respectable persons that the defendants held the land as charkan and did render begar service to the plaintiff on ceremonial occasions for the privilege of living is the homestead.
8. This is all that the learned Subordinate Judge has said with regard to the oral evidence that was adduced on behalf of the plaintiff. Now, both my Lord the Chief Justice and myself have looked into the evidence carefully and the opinion which we have formed of it is this that the evidence falls far short of establishing that there was a chakran tenancy with regard to this land. The learned Munsiff analysed this evidence and found that much of it was irrelevant and part of it was inadmissible and what little was left was not sufficient to establish a chakran tenancy. Although I am not prepared to go so far as to agree with my learned brother Cammiade, J., in holding that the whole of it is inadmissible I am clearly of opinion that leaving aside the inadmissible portion of the evidence the rest does not in any way rebut the presumption which arises in favour of the defendants upon the entry in the Record-of-Bights. In this view of the matter I am of opinion that the decision of Cammiade J. is right that the learned Subordinate Judge's judgment should be set aside and that of the Munsiff should be restored.
9. There remains to consider one other matter and that is the contention that was put forward on behalf of the appellant that we are not entitled to look into the reasons given by the learned Subordinate Judge other than1 those that have been referred to by-Cammiade, J., because Order 41, Rule 20, Civil P.C., does not apply to the case of a Letters Patent appeal. What the respondents have done in the present; case is to put before us those facts and1 circumstances which appear upon the judgment' of the learned Subordinate' Judge and which must have greatly] weighed with my learned brother Cammiade, J., although he has not thought fit to embody them in his judgment in arriving at his conclusion. I am of opinion that the respondents were perfectly justified in referring to and relying upon those facts and circumstances. There is no doubt a body of authorities which support to a certain extent the proposition which is sought to be propounded on behalf of the appellant but in view of the decision of the Judicial Committee in the case of Sabitri Thalcurani v. Savi A.I.R 1921 P.C. 80 it may be necessary in a proper case when the question arises to consider whether this proposition should not be further considered. The result is that the appeal fails and must be dismissed with costs.
10. I agree.