1. This appeal arises out of a suit under Section 106, Ben. Ten. Act. The plaintiff's predecessor in-interest Purna Chandra Dutta was recorded as an occupancy raiyat in respect of certain Jamas in the finally published Record of Rights. The plaintiff's case is that these Jamas are Maurashi Mokarari. He therefore prays for the correction of the Record of Rights. The defendants who are the landlords under whom these Jamas are held, contested the plaintiff's claim on the ground that these holdings were merely occupancy holdings and that the Record of Rights was correct. The Revenue Officer came to the conclusion that the disputed holdings were occupancy holdings and in that view dismissed the suit. On appeal by the plaintiff to the lower appellate Court the learned Special Judge has come to the conclusion that the holdings are Mokarari holdings. He has accordingly reversed the decision of the Revenue Officer and has decreed the plaintiff's suit. Hence this Second Appeal by the defendant landlords.
2. It appears that the plaintiff and his predecessors in interest had been paying rent at an uniform rate for more than 20 years before the institution of the present suit. The plaintiff is therefore entitled to the benefit of the presumption under Section 50 (2), Ben. Ten. Act. The question is whether the landlords have succeeded in rebutting this presumption. In order to rebut this presumption the landlords rely upon their collection papers of the year 1271, 1277, 1278, 1298. They also rely upon the admission of the plaintiff's predecessor-in-interest, Purna Chandra Dutta, to the effect that these holdings were non-transferable occupancy holdings in certain rent suits instituted by the landlords against the original raiyats from whom the plaintiff's predecessor-ininterest, Purna Chandra Dutta, purchased these Jamas. From the collection papers of 1271, 1277, 1278 it appears that the disputed Jamas are not mentioned therein. The learned Special Judge was of opinion that the absence of any entry relating to these Jamas in these collection papers is no evidence against the tenant. We are unable to agree with the learned Judge in this view of the matter. Absence of entries relating to these Jamas in these collection papers is evidence in the case but its evidentiary value would depend upon the other facts disclosed in the case. The learned Judge's finding that the landlords failed to rebut the presumption under Section 50 (2) is therefore vitiated by an error of law, inasmuch as he excluded from his consideration these collection papers which are admissible in evidence and are relevant to the question whether these Jamas came into existence after the permanent settlement. As the evidence on the record is sufficient for the determination of the question we now proceed to determine it, because we are of opinion that no useful purpose would be served by remanding the case to the lower appellate Court.
3. We have already pointed out that in collection papers of 1271, 1277, 1278 and 1298 these disputed Jamas are not mentioned. Only five of these Jamas are mentioned in the collection papers of 1298. The learned advocate for the appellant contends that these Jamas must have come into existence sometime after 1278 B.S. and consequently the presumption under Section 50 (2) is rebutted by these collection papers. The learned advocate for the respondent however contended in view of certain decisions of this Court that the absence of any entry in the collection papers was not conclusive and did not prove that these Jamas were not in existence before 1278. It appears however that in 1926 the landlords instituted certain rent suits against their recorded tenants, that is, the persons from whom the plaintiff's predecessor-ininterest, Purna Chandra Dutta, purchased these holdings. They did not recognise the transfer in favour of Purna Chandra Dutta by the recorded raiyats. Ultimately however Purna Chandra appeared and filed a petition stating that he was the purchaser of these holdings which were not transferable by law or by custom and that his transfer was recognised by the landlords on receipt of Selami. On the basis of this application the purchase by Purna Chandra Dutta was recognised by the landlords and he was impleaded as a defendant in the rent suits. This admission of Purna Chandra indicates that in 1926 these holdings were admitted to be not Mokarari. It is not the plaintiff's case that the holdings were created by any Mokarari grant.
4. The only ground on which the plaintiff now claims Mokarari rights to these Jamas is under Section 50 (1), Ben. Ten. Act, namely, that the rent of these holdings remained unchanged from the time of the permanent settlement. In order to substantiate this ground he relies upon the presumption under Section 50 (2), Ben. Ten. Act. In 1926 Purna was entitled to the benefit of this presumption and if really these holdings were in existence from the time of the permanent settlement, Purna would not have made the admission then that the holdings were not Mokarari. His admission consequently indicates that these holdings are in existence from the time of the permanent settlement. The admission of Purna therefore corroborates the appellants' case that these holdings came into existence after 1278. We are therefore of opinion that the collection papers of 1271, 1277, 1278 and the aforesaid admission of the plaintiff's predecessor-ininterest, Purna Chandra Dutta, in 1926 rebut the presumption which arises in favour of the plaintiff under Section 50 (2), Ben. Ten. Act. The result therefore is this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the Revenue Officer are restored with costs in the lower appellate as well as in this Court.