1. In this appeal, by the landlords who had applied Under Section 105, Ben. Ten. Act, for settlement of additional rent for additional area Under Section 52 as also for enhancement of rent Under Section 30(b), Ben. Ten. Act, after correction of the entry in the finally published record of-rights that the tenants, against whom the application Under Section 105 was directed, were mokarari tenants, the main question for consideration was whether the presumption in favour of the tenants arising out of the settlement records as also the presumption Under Section 50, Ben. Ten. Act, had or had not been rebutted. The landlords attempted to establish their case that the tenants were not mokarari tenants in various ways. It was sought to be established that there was variation in the rent payable in respect of the tenancy in question. The Assistant Settlement Officer and the Special Judge have considered the materials placed before the Court, bearing upon the question. There was apparently a change of 4 annas in the rent. The thokas produced by the landlords showed a variation from Rs. 122-10-1 to Rs. 122-14-1. It was not, however, possible for the Court below to hold that this variation was a real change in the rent or an apparent variation, nominal in character, due to an accidental or clerical error. The Assistant Settlement Officer has pointed out that it was 'very easy to confuse the Bengali figures 10 annas and 14 annas.'
2. The thoka of the particular year in which the variation in rent was said to have been made, was not produced, and the oral evidence on the point has been disbelieved by the learned Special Judge in the Court of appeal below. In the above view of the case, so far as variation of rent was concerned, the conclusion arrived at by the Court below has to be accepted, that there was no variation of rent which could have the effect of displacing the presumption as to fixity of rent in favour of the tenants concerned. It may be mentioned in this connexion that if it were possible to hold, in the case before us, that there was a variation, the fact that the variation was slight, and was not a substantial one, would not have weighed with us in giving effect to the contention of the landlords appellants before us, on the question raised by them in this behalf. In order to rebut the presumption arising Under Section 50(2), Ben. Ten. Act, the change of rent which may not be substantial, may, in our opinion, be sufficient. As has been pointed out in the decision of this Court in the case of Dearish v. Dwijadas Chakrabarty AIR 1926 Cal 1214 a change in the rent or the rate of rent may not be a substantial one; but it may all the same be a change as contemplated by Section 50(2), Ben. Ten. Act. It is not, however, necessary to consider this aspect of the case, in view of the conclusion arrived at by the Court below, upon materials before it, which must be treated as a finding of fact binding on this Court.
3. A point was made with reference to two documents, one described as an istafanama and another a kabuliyat, that a new tenancy was created, to which presumption Under Section 50, Ben. Ten. Act, was not applicable, and the tenants would not therefore be held to be mokarari tenants, as recorded in the settlement records. On a careful consideration of these documents which have been placed before us and have been commented upon in detail, we are unable to bold that there was any surrender or a subsequent new settlement, or that the jama of Guru Prosad Nasker was created for the first time by the kabuliyat of the year 1268 B. S., as has been contended on behalf of the landlords-appellants before us. In regard to the variation in area, the Courts below have pointed out clearly that the materials placed before the Court did not at all establish the position that the landlords were entitled to any additional rent for excess area. The inception of the tenancy in question had not been traced, and the fact of measurement at the inception of the tenancy had not been proved. The learned Special Judge has pointed out in his judgment that the chitta of 1268 B.S., produced by the landlords in support of this part of their ease, did not show that the juma in respect of which additional rent was claimed, was included in the chitta or that it was measured at the time when the chitta was prepared. For the reasons stated above, we are unable to give effect to any of the contentions advanced on behalf of the appellants in this appeal. The appeal is accordingly dismissed with costs, the decision of the Court below being:
4. 11th May 1933.-In view of the facts and circumstances brought to our notice today, it is necessary to vacate our order relating to costs in this appeal, and in supersession of the order as to costs made in our judgment delivered on 10th April 1933 we direct that the appeal, do stand dismissed without costs. There is no order as to costs as the respondent in the appeal did not enter appearance.