1. This appeal has arisen in connexion with a suit in ejectment. The plaintiff purchased a certain estate of which the disputed property forms part, at a sale held for arrears of revenue. His contention is that he has annulled the interest of the defendants. There were two defences : (1) that the defendants' interest is a tenure which has been held at the same rent from the time of the permanent settlement, and (2) that they are occupancy raiyats and therefore, not ejectable. Both these defences have been overruled in the Court of Appeal below and have been accordingly pressed again here. In the finally published record of rights the interest of the defendants was recorded as that of a permanent mokarari tenure. There is no evidence that it was w existence at the time of the permanent settlement. There is indeed no evidence as to its actual origin. The result is that on the record the defendants have failed to prove their case with regard to their first defence. It was however contended on their behalf that they are entitled to the presumption under Section 50, Ben. Ten. Act, in spite of Section 115 of that Act. In view of the way in which the point was dealt with in the lower Appellate Court, it is not necessary to decide this point, but inasmuch as it has been fully argued on both sides, I propose to deal with it shortly. In support of the proposition reliance was placed on the decision in Rashbehari v. Dwarka Nath ('23) 10 A.I.R. 1923 Cal 365. With great respect to the learned Judges, who decided that case, I should have felt it impossible to follow it and would have been bound to refer the case to the Division Bench if it were necessary to decide that point now or if it appeared to be a binding authority. It appears from the judgment that the learned Judges were pressed by the consideration that
it will certainly go far to deprive the tenant of a cherished right, if in such a case as the present he is told that he cannot support the entry by reference to the very presumption in virtue of which the entry may have been made.
2. Section 50, Ben. Ten. Act, is the first Section in Chap. 8 which deals with general provisions as to rent and, in particular, with rules and presumptions as to amount of rent. The first sub-section provides that in tenures or raiyati holdings, which have been held at the same rent from the time of the permanent settlement, rent is not liable to enhancement. Sub-section (2) then provides for a presumption which will arises from holding at the same rent during 20 years immediately preceding the institution of the suit. The difficulty or impossibility in the way of a tenant proving that his holding has been held at the same rent from the time of the permanent settlement would render this provision with regard to the fixity of rent almost a dead letter. Although the presumption is quite arbitrary, it serves a very useful purpose. But as soon as the Record of rights is finally published a presumption will arise as to the status of the tenant from that entry, and this peculiar presumption laid down in Section 50 can no longer be justified. If, as in the present case, the finally published record of rights supports the tenant with regard to the fixity of rent, this other presumption becomes redundant. On the other hand, if the finally published record of rights is against the tenant, this other presumption would only create confusion by raising a contradiction. It therefore seems to me that Section 115 is a most salutary provision and there is no reason why it should not be given its literal meaning.
3. Now the decision upon which reliance was placed is against the weight of authority. I do not propose to refer to all the decisions but would merely mention that in Mofizuddin v. Rajendra Nath : AIR1925Cal208 . I would respectfully follow those decisions and not that with which I have dealt. Then in the second place, the presumption is restricted to suits or proceedings under the Bengal Tenancy Act, that is to say, suits or proceedings which raise questions involved in the relationship of landlord and tenant. The present suit is not a suit of that character. The plaintiff is seeking to eject the defendants on the ground that they are trespassers. The result is that the presumption would have no application to the present suit. Thirdly, before the defendants could raise the presumption they would have to show uniform payment of rent for 20 years immediately preceding the institution of the suit. The position with regard to that is this : The admitted rent is recorded in the finally published record of rights. The period covered is less than 20 years. The other evidence consists of one or two dakhilas of a much earlier period to which the learned Munsif made a cursory reference. So, before the presumption could arise, the final Court of fact would have to decide firstly whether these dakhilas are genuine and secondly whether from those dakhilas it ought to be inferred that the rent has not varied during 20 years immediately preceding the institution of the suit. Now, in the lower Appellate Court this defence was abandoned altogether and reliance was placed on the second defence. The question whether the rent has not varied during 20 years is a question of fact. When it was not pressed in the final Court of fact, it cannot be reagitated here.
4. The result is that if the defendants are tenure-holders, they have failed to show that the tenure was in existence at the time of the permanent settlement and they are liable to ejectment. There remains the second defence : there is a presumption that the defendants are tenure-holders and, if they maintain that they are raiyats, it is for them to rebut that presumption. The learned Judge has not come to any definite finding on it. He was satisfied with holding that even if they are raiyats, they are still liable to ejectment. There is certainly some evidence on the record upon which the appellants can ask for a finding. It would therefore he necessary to remand the case if the Subordinate Judge's decision has to be overruled. In support of this part of the appeal two arguments were made : (1) that the defendants are occupancy raiyats and (2) that they do actually cultivate a major part of the disputed land. On the first point the learned Subordinate Judge relied upon the decision of the Privy Council in Turner Morrison & Co. Ltd. v. Manmohan Choudhury . Their Lordships said this:
The question of the proviso can also be disposed of without difficulty. The Subordinate Judge was satisfied that four of the plots, subject to the suit, were raiyati holdings at the time of the settlement. He did not think that the appellants were themselves raiyats but he held that 'raiyat' in the proviso also included the successors-in-interest of raiyats, construing the term by the definition contained in Section 5(2), Ben. Ten. Act of 1885. The High Court, on appeal, thought that there was no justification for this, and that, there being no definition of raiyat in the Act of 1859, it must be read in its ordinary sense of a cultivator. Their Lordships have no doubt that the view taken by the High Court was right and that the proviso has no application to the appellants.
5. That decision clearly applies to the facts of the present case. It was argued that subletting is not inconsistent with the holding of an occupancy raiyat. This proposition cannot be disputed, but it is no answer to the finding of the learned Subordinate Judge. He was bound by the decision upon which he relied. The second argument raises a pure question of fact. I have been through the record and there is certainly a bold statement by one witness to the effect that all but one of the sub-leases have been surrendered. The learned Judge has not accepted this statement as true and his finding is quite definite. Furthermore, this point was not even raised in the grounds of appeal. The result is that the appeal fails and is dismissed with costs. Leave to appeal under Clause 15, Letters Patent is refused.