1. This is an appeal on behalf of the defendant and it arises out of a suit for enhancement of rent of a tenure which the defendant holds under the plaintiff--The Kheraria Mejozilla Zamindary Syndicate Limited. The plaintiff claimed enhancement under Section 7, Ben. Ten. Act, from Rs. 66-7-3 to Rs. 152-3-3. There was an alternative claim for assessment of rent at Rs. 139-13-6 at 9i annas per local bigha. The Munsif granted a modified decree to the plaintiff allowing his claim partially holding that the Syndicate Ltd., was entitled to enhancement up to Rs. 125-8-0. The plea taken by the defendant with regard to payment was negatived. On appeal by the defendant and cross-appeal by the plaintiff, the Additional Subordinate Judge has affirmed the decision of the Munsif. Against this decree of the Additional Subordinate Judge, the present appeal has been brought and it is contended on behalf of the appellant that there has not been a proper trial of the appeal seeing that the lower appellate Court in dealing with the appeal relied on a document Ex. A, which was not put in evidence in the suit out of which this appeal arises but was put in evidence in another suit along with which the suit out of which, the present appeal arises was tried with the consent of parties. The main contention of the defendant is that there ought to be a remand seeing that the judgment of the lower appellate Court is vitiated by this defect, namely, that the lower appellate Court relied on Ex. A, which was no part of the evidence in this case. It is to be observed that the Subordinate Judge has not rested his decision solely on Ex. A. The tenure in question was recorded in the Record of Eights as a nonmukarrari tenure and as such the plaintiff, The Khararia Mejozilla Zamindari Syndicate Limited, was entitled to get an enhancement of rent under Section 7 unless the defendant established that the tenure was in existence from the date of the permanent settlement. In order to establish that, the defendant sought to rely on the presumption under Section 50, Ben. Ten. Act, by showing that for nearly half a century or more he had been paying rent at the rate of Rule 66-7-3 and that consequently he was entitled to the benefit of the presumption that the tenure was in existence from the date of the permanent settlement. The answer to this contention is that the Record of Eights has been published duly under Oh. 10, Ben. Ten. Act, and having regard to the provisions of Section 115 of that Act, it is clear that the defendant is not entitled to the benefit of that presumption.
2. Then it is argued by Mr. Brojolal Chuckerbutty who appears for the defendant-appellant that the defendant is entitled to the benefit of a presumption of fixity of rent from the uniform payment of rent for a very long time apart from the presumption under Section 50, Ben. Ten. Act. This contention again is untenable. The case is one which is governed by the Bengal Tenancy Act and, if the defendant is not permitted to avail himself of the provisions of Section 50 by reason of the provisions of Section 115 of the Act, he cannot fall back upon any presumption outside the Act. Mr. Chuckerbutty has referred to one or two cases in support of his contention that there is a presumption even apart from Section 50 of the Act. An examination of those cases however will show that some of them, were not cases under the Bengal Tenancy Act at all. They were cases in ejectment to which the provisions of the Bengal Tenancy Act, did not apply. There were other cases amongst which the case of Gulab Misser v. Kumar Kalanand Singh  6 I.C. 217 may be mentioned and therein the learned Judges observed that, even if the presumption under Section 50, Ben. Ten. Act, did not apply to that particular case, there was nothing to prevent the tenant from establishing by other evidence that he had a right of occupancy at a fixed rate. These cases do not therefore assist the appellant. Both the Courts below have shown that there is evidence in this case to show that there has been a variation from the previous rent of Rs. 50 odd to Rs. 66 odd. They have relied upon a number of jama wasil baki papers which have been filed on behalf of the landlord in order to show variation of rent. It is not necessary to examine those papers though Mr. Chuckerbutty has invited us to do so seeing that it would only have been necessary to do so for the purpose of rebutting any presumption under Section 50 to which the defendant might have been entitled. But, as has already been stated that the presumption does not arise in his favour, it is not necessary for the landlord to show that that presumption has been rebutted by showing that there has been subsequent variation of rent. I am. of opinion therefore that the decisions of the Courts below are right and that this appeal should be dismissed with costs.
3. I agree.