1. These appeals (Nos. 1946 to 1949 of 1927) are from a decision of the District Judge of 24 Parganas confirming a decision of the Subordinate Judge, 2nd Court, Alipur. They arise out of one judgment. The plaintiffs in the suits out of which these appeals arise were suing for ejectment of the defendants from four holdings. The plaintiffs' case was that the lands with which the suits are concerned appertained to a putni in Touzi No. 343 of the 24 Parganas Collectorate belonging to Hari Mohan Ghose plaintiff 1 and his brother Harihar Ghose in equal shares. Harihar Ghose executed a trust deed appointing the other plaintiffs as trustees and they were in possession of the half-share which belonged to him. The plaintiffs averred that the lands in question were situated within Mouza Pujali within the plaintiffs' mahal and were held under them as appertaining to tenancies which are ticcagar kayemi and non-transferable, and rents were paid to the plaintiffs by the occupiers of the lands in the names of the recorded tenants. The plaintiffs further stated that the tenancies had been sold without the plaintiffs' knowledge and non-sent to the present defendants by the occupiers who abandoned the tenancies without making any arrangement for payment of rent and that accordingly the defendants were in possession of the land as trespassers. They therefore claimed the ejectment of the defendants from the land and the right to hold the taluk in khas possession. The real defence set up by the defendants was that the disputed tenancies were heritable and transferable and that they had been held at a uniform rate of rent from time immemorial and that the plaintiffs were estopped from denying that position by their acts and conduct and accordingly they were not entitled to recover possession. It appears that the holdings had been leased out to certain recorded tenants. After a time these recorded tenants had ceased to pay rents and the plaintiffs had continued to receive rents in their names from other persons as sarbarakars. In the case of four of these tenancies the sarbarakars sold their rights to the defendants in 1919, and in the fifth case they sold the rights to defendants in 1921. It was contended on behalf of the plaintiffs that the sales by the sarbarakars being transfers of entire non-transferable occupancy holdings had in fact constituted abandonment and on this ground they claimed possession. The case for the defence on the other hand was that whether they were tenants or not the sarbarakars had acquired a transferable right in the land. With the exception of the lands with which Suit No. 135 was concerned it is not disputed that the holdings were in fact agricultural tenancies. The learned District Judge came to the conclusion that in the circumstances of these cases the sarbarakars that is to say the vendors to the defendants were in fact the tenants of the plaintiffs. And he further came to the conclusion that the onus was on the tenants to show that the occupancy holdings were transferable. The main contention put forward on behalf of the defendants in the lower appellate Court was that the presumption arising under the provision of Section 50, Ben. Ten. Act, ought to have been applied' to the consideration of these cases, and that contention was the one mainly relied upon in the argument put forward before us in the course of these appeals. In order to arrive at a right determination in the matter it is necessary to consider the precise nature of the suits with which we are concerned and to observe the way in which the plaintiffs' claim was in fact framed. The language of Section 50 is perfectly plain in that it lays down that the presumption therein mentioned shall only arise if:
it is proved in any suit or other proceeding under the Act (Bengal Tenancy Act) that either a tenure-holder or raiyat and his predecessors in interest have held at a rent or rate of rant which has not been changed during the 20 years immediately before the institution of the suit or proceeding.
2. There is no doubt whatever that the provision was intended to mean and in fact does mean that the presumption shall only arise where the suit is one brought under the provisions of the Bengal Tenancy Act. One would scarcely have thought that it would be necessary for any judicial decisions upon that point in order to put that proposition beyond doubt. But actually there is a long line of cases in which it has been categorically laid down that the object of the legislature in providing for the presumption as to the fixity of rent mentioned in Section 50, Ben. Ten. Act, was to provide in suits or proceedings under the Act, that is, suits between landlord and tenant as such, a speedy determination of the rights of the parties. I only need give the bare references to one or two cases in which that has been decided, namely the cases of Buzlul Karim v. Satish Chandra Giri (1911) 10I.C. 325 and Santosh Kumar Roy v. Rakhal Chandra Kazra : AIR1927Cal174 .
3. All these cases show that Sub-section 2, Section 50 has no application to suits which are not suits under that Act but are suits under the general law. In the present suits the plaintiffs brought their cases upon the footing that the defendants were trespassers upon the lands in question. The plaintiffs proved to the satisfaction of the Court below that the lands were in fact part of their estate and that therefore prima facie, unless the defendants could show that they were entitled to be upon the land by reason of some right vested in them, the plaintiffs were entitled to recover possession. The defendants apparently succeeded in showing that the rent paid in respect of the lands in question had not been changed for a period of 20 years. Upon that it was contended on their behalf that the presumption under Section 50(2) did arise and that it was incumbent upon the plaintiffs to rebut that presumption. Having regard to the terms of the section itself and the authorities to which I have referred above the proof by the defendants that rent had not been changed for 20 years did not raise a presumption such as was contended. All these authorities and others do however show that the Court may, even in the case of a suit brought under the ordinary law, if it thinks fit, apply the presumption similar to that provided for by the statute. I cannot do better than quote the language which Mookerjee, J., used at p. 784 of 43 C.L.J. with reference to Section 50:
It has been repeatedly pointed out that the presumption mentioned in Section 50 applies only to cases arising out of suits or proceedings under the Bengal Tenancy Act.
4. He then went on to say:
But it has sometimes been held that even in cases where Section 50 is not directly applicable the Court may act on a similar presumption if the facts justify the necessary inference.
5. To put it concisely the matter comes to this that in suits under the Bengal Tenancy Act the Court shall presume whereas in cases arising under the general law as in the present cases the Court may presume. In other words, if the Court chooses, it may draw an inference that because rent had been uniform for 20 years therefore it must have been uniform since the date of the Permanent Settlement. It has been argued by the learned advocate for the appellant that the learned District Judge did not apply the presumption in the present cases. What I have said however is sufficient to indicate that it was entirely a matter for the learned Judge whether or not in the facts and circumstances as proved before him he would be justified in applying the presumption in such a manner as to shift the onus back from the defendants on the plaintiffs. It appears from the judgment of the learned District Judge that there was no serious attempt on the part of the defendants to show that the tenancy originated as far back as the Permanent Settlement or that the rent has not been changed for a period much longer than 20 years.
6. He said:
There is no evidence with regard to the origin of the tenancy. The plaintiffs have produced a number of papers which have been called for from the Collectorate' etc.'
and then he sums up the position in these words;
it therefore comes to this that the defendants have proved that there had been no change of rent for the last 20 years. Whereas they have failed to prove that there has been no change of rent since the Permanent Settlement and that the plaintiffs have shown that it is probable that these tenancies were not in existence then.
7. It is clear from his judgment that he took into account the possibility of applying the presumption which might have arisen by reason of payment of fixed rent for 20 years and he evidently came to the conclusion that in these suits the application of the presumption was not warranted. It has further been argued on behalf of the appellants that the Courts below erred in that they seem to have taken into account certain papers which had been called for from the Collectorate the papers which were filed in the Collectorate for the purposes of Decennial and the Permanent Settlement. The learned District Judge thought, and we also do not think that they were good evidence in a case of this description and that it was possible to infer from those papers that the tenancies were not in existence at the time of the Permanent Settlement. The appellants have argued that the Courts below ought not to have taken those papers into account at all. I think it is not necessary for us to decide for the purposes of these appeals one way or other whether the Courts below were or were not right in so doing because once the suits had arrived at the stage where the onus was on the defendants and they had produced apparently no other evidence than that with regard to the payment of fixed rent unless the presumption of the kind provided in Section 50(2) was to be applied it is clear that the defendants had not discharged the onus which lay upon them and therefore irrespective of the question whether the plaintiffs produced any further evidence or not at that stage of the suit the defendants had entirely failed to show that they had any right whatever to remain Upon the lands in question; and therefore the taking into account by the Courts below of those papers did not in 1 my judgment affect the result of the suits one way or the other.
8. The only other matter which was put forward on behalf of the defence was that the learned District Judge was wrong in not giving consideration to the question whether or not the lands in dispute were by custom transferable, a Apparently at a late stage of the case a the defendants had sought before the learned Subordinate Judge who tried t the cases to raise an issue on the question of transfer by custom. But it does seem that it was admitted on behalf of the defendants that no such issue was it raised by them in their written statement. Therefore it was clearly a matter of discretion with the learned Subordinate Judge as to whether or not he should allow such an issue to be framed having regard to the late stage in which it was sought to be raised. The learned District Judge upheld the Court of first instance on this point; and we think that as it was a matter of discretion for the Judge who triad the case the lower appellate Court was right in so doing. We therefore take the view that there is nothing in the judgment of the learned District Judge which calls for an interference on the part of this Court. The appeals are therefore dismissed with costs.
9. I agree.
10. There is a further series of appeals (Second Appeals Nos. 451 to 455 of 1928) from a decision of the First Additional District Judge 24 Parganas confirming a decision of the Munsif, 3rd Court, Alipur. All these appeals arise out of suits in which the parties were the same as in the previous series of suits. The matters in dispute in the suits out of which these appeals arise were for all intents and purposes similar to those of the four previous appeals which I have already dealt with. These four suits were tried together as a matter of convenience and the points in controversy are substantially the same in all of them. It appears to be conceded on behalf of the appellants that although one or two minor points have been urged before us they for all practical purposes are covered by the decision in the first four appeals. In some of these suits decision was given in favour of the defendants in the lower appellate Court and against this decision the plaintiffs have not appealed. Having regard to the submission made on behalf of the defendants all that we need say is that we affirm the decision of the lower appellate Court. These appeals are likewise dismissed with costs.
11. I agree.