1. The landlord is the petitioner in this case. In the lower Court he applied under Section 26(j), Ben. Ten. Act, for the payment to him of the balance of the landlord's fees due to him in respect of the transfer of a certain occupancy holding which took place on 4th September 1933. The landlord's fees were paid by the opposite parties on the footing that the land which was transferred to opposite party No. 1 was a holding held at a fixed rate of rent. The landlord's contention on the other hand is that the holding in question was an ordinary raiyati holding the rent of which is liable to enhancement. The Record of Eights is in favour of the landlord and it describes the transferred holding as being that of a settled raiyat. The evidence given by both the contesting parties in the Courts below was somewhat meagre. The landlord produced the Record of Eights and opposite party No. 1 produced a potta of 1864 whereby the land, which is the subject matter of this application, was leased to his predecessor, and he also put in evidence a decree in his favour of the year 1924, which showed that the holding was held in that year at the same rate of rent as had been mentioned in the potta of 1864. The learned Munsif held that in fact the Record of Eights had been rebutted on account of the presumption which arose from the fact that the transferred holding had been held at a fixed rate of rent from 1864 to 1924.
2. The learned advocate for the petitioner argues that the decision of the lower Court is wrong as the learned Munsif has in effect relied upon the presumption arising out of Section 50, Ben. Ten. Act, which he was not legally entitled to do. The learned advocate for the opposite parties on the other hand contends that even apart from the presumption which arises under Section 50, Ben. Ten. Act, the learned Munsif was justified in giving effect to the natural presumption which arises from the circumstances established by the evidence given on behalf of the opposite parties, the principal items of which were the potta of 1864 and the decree of 1924. In support of this contention, the learned advocate for the opposite parties relied upon a decision of this Court reported in Golab Misser v. Kalanand Singh (1910) 14 C.W.N. 884. That however was not a decision under the Bengal Tenancy Act. With regard to the cases which fall within the provisions of the Bengal Tenancy Act, it was held by this Court in Braja Das Roy v. Bankim Chandra (1924) thus:
It cannot be held in a case brought under the (Bengal Tenancy Act that any presumption arises as to the fixity of rent from mere payment of the same rate of rent for a number of years apart from the presumption arising under Section 50 of the Act. To hold otherwise would be to require every landlord to enhance the rent of every tenant under him at certain intervals of time which he might cot himself desire to do.
3. The same view was adopted by Pearson and Mitter JJ. in chattopadhya v. Khararia Mejozilla Zamindary Syndicate Ltd. : AIR1932Cal632 . In my view the principles laid down in the two latter cases should be followed in the case with reference to which this application arises. The position seems to be that the learned Munsif held that the presumption arising under Section 103-B, Ben. Ten. Act, had been rebutted by a presumption under Section 50 of the Act to the benefit of which opposite party No. 1 was not legally entitled having regard to the provisions of Section 115 of the Act. It has been faintly argued by the learned advocate for the opposite parties that the landlord filed previously an application in respect of the landlord's fees which he is now claiming and that this application was dismissed on 10th July 1934. But he is unable to produce a copy of any order purporting to be a dismissal order relating to any such application. In my view, the decision of the learned Munsif cannot be sustained and it must be held that the opposite parties have not succeeded in rebutting the presumption arising in favour of the landlord. This decision must therefore be set aside and the petition of the landlord allowed. The rule is made absolute with costs. I assess the hearing fee at three gold mohurs.