1. These are appeals by the landlord against the decision of the Special Judge, affirming the decision of the Revenue Officer, by which the applications of the appellant under Section 105 of the Bengal Tenancy Act for settlement of fair and equitable rent of certain tenures were dismissed. The applications were in substance for enhancement of rent. The facts briefly stated are these : These tenures are within an estate which was known as 4 annas hissa of Pergana Dandra and were in existence from long before the Decennial Settlement. The proprietor of the estate Mahammad Ali Chowdhury was imprisoned for life as a rebel and his estate was confiscated by Government by an order, dated 8th February, 1793. There were 45 taluks and 38 tappas within the property and certain other lands, but with these last the present appeals have no concern. The Collector of Tipperah made dowl settlements with the talukdars. In those dowls only the rents were specified, but the area of any of the taluks was not defined. Government collected the revenue by farming out the zemindary for some years, but subsequently realised the dues from the tenure-holders directly. Malikana was paid to the heirs of Mahammad Ali for some time, but it was discontinued when it was found to have been done under a mistake. Difficulties arose with regard to the management of the zamindary mainly because the areas of the taluks were not specified and the revenue officers proceeded to assess the jama of the taluks with reference to the areas. One of the talukdars brought a suit in the civil Court for setting aside the jamabandimade with regard to his taluk. He was successful in the trial Court and in the Court of first appeal, but in 1847 the Sadar Dewany Adalat in special appeal held that the civil Court had no jurisdiction in the matter and dismissed the suit. In the result jamas were settled with regard to the tenures in 1848 and it was directed that the settlement would be for a period of 30 years. The Assistant Settlement Officer however finds that there is clear and incontrovertible evidence that the tenure-holders did not agree to this assessment and lost one-third deductions to which they would otherwise have been entitled, the rights of the talukdars were not judicially determined and it appears that they had to submit to the assessment under compulsion. The tappas were twice surveyed and assessed, once in 1824 and again in 1848 and settled similarly as the taluks. The tenure-holders to whom these appeals relate have been paying the same jama since 1848. In 1869 the taluks, tappas and other lands in the 4 annas hissa were made a zemindary and permanently settled with Asima Banu an heir of Mahomrnad Ali and Bharat Ohundra Deb who had purchased the interest of the other heirs of Mahommad Ali. The present plaintiff purchased the zemindary in 1880.
2. The Assistant Settlement Officer divided the tenures into 5 classes according to their description; for the purpose of his decision. He placed the taluks in classes A and B and the tappas in class C. The lands in classes I and E do not appear to be the subject of dispute in these appeals and no argument was addressed to us on any matter relating to them. With regard to the questions involved in these appeals, the Assistant Settlement Officer held that the taluks in class A were of the description mentioned in Section 1 of Regulation I of 1793 and Section 4 of Regulation III of. 1793 (or in other words they were independent taluks), but that they have now lost that character. He however held with regard to all the three classes of tenures that they were in existence from the Permanent Settlement and are subject to enhancement of rent only according to the provisions of Section 6 of the Bengal Tenancy Act, and that the plaintiff has failed to prove 'local custom' or 'conditions' mentioned in Clause (a) of that section. He therefore dismissed the applications of the plaintiff. On appeal the Special Judge affirmed that decision, but he held also that the tenures were independent taluks. He observes : ' These tappas and taluks were all along mentioned as being Decennial ones which under Regulation I of 1793 mean to be independent taluks. Anyhow on a careful consideration of all the circumstances urged on all sides, we think the zemindar who derived his right in 1869 long after the creation of these taluks had no right to treat them as dependent taluks and on variable rents. Prom 1848 to 1869 they also paid uniform rents and previous to 1848, there having been no ascertainment of definite area it cannot be properly said that the rents of these taluks varied. If there was any increase it was for excess area. We therefore find that there is no good ground to assert that these taluks are on enhancible rents and that the plaintiff has any right to demand enhancement of rents under Sections 6 and 7, Bengal Tenancy Act. The presumption of Khatians is clearly rebutted.' On these findings the appeals were dismissed and the learned Judge did not consider the other points raised before him. Before we deal with the questions raised before us by the appellants we should mention that a certain number of appeals had abated against some of the respondents owing to their death. Applications for substitution of their heirs and for setting aside the abatement were made long after the period of limitation. No order setting aside the abatements was made but the order of the Court was this : 'Subject to objection at the hearing, let the substitution be made as prayed, and let the usual notices be issued.' In those appeals in which objection was made before us at the hearing we did not see any reason for setting aside the abatement and they were ultimately dismissed as not maintainable. In other appeals in which no objection has been taken we set aside the abatement and heard them along with the rest.
3. Two questions only have been raised before us on behalf of the appellant: (1) that the taluks are not independent taluks and even if they were so, the talukdars who pay rent to the zemindars come within the provisions of Sections 6 and 7 of the Bengal Tenancy Act; and (2) that the tenures are not held at a fixed rent but at a rent liable to enhancement.
4. We shall take up for consideration the 2nd question first assuming that the taluks are not independent taluks. It cannot be questioned nor has it been questioned here, that the tenures have been held from long before the Permanent Settlement. Section 6 of the Bengal Tenancy Act is therefore applicable to them. The section runs thus : Where a tenure has been held from the time of the Permanent Settlement, its rents shall not be liable to enhancement except on proof:
(a) That the landlord, under whom it is held, is entitled to enhance the rent thereof either by local custom or by the conditions under which the tenure is held...' (nothing in the case turns on Clause (b).
5. As it has been established that the tenures have been held from the time of the Permanent Settlement, the burden is cast upon the landlord, of proving that he is entitled to enhance the rent. It was so held by the Privy Council in Bamasoondery v. Radhika (1969) 13 M.I.A. 248 with reference to Section 51 of Regulation VIII of 1793. That section of the Regulation has been repealed and replaced by Section 6 of the Bengal Tenancy Act in similar terms. No question of local custom has been raised in these cases. If the landlord does not prove the fact that, by the conditions under which the tenures are held he is entitled to anhance the rent, his suit must fail. No such evidence has been given, but the landlord relies upon the settlement of jama by the revenue authorities in 1848, and asks the Court to make an inference in his favour. Both the Courts. below have found against him. The question whether the landlord had succeeded in proving the necessary conditions is primarily a question of fact. But it is contended that the conditions of the tenancy in these cases are to be inferred from other facts and circumstances and this inference is an inference of law. Assuming this to be so, we are unable to accept the contention that the conclusion arrived at by the Courts below on this question is erroneous. This conclusion is assailed on two grounds, first, that the dowls do not show permanent settlement of rent and, second, that the proceedings which terminated in the assessment of rent in 1848 establish the plaintiff's case. In the course of the argument addressed to us we were led through the greater part of the important documents on the record. Even if we accept the first ground as correct, that would only be negative evidence and would not establish the case plaintiff has to make out. The dowls, however, in our opinion do not help the plaintiff in any way. One of the dowls taken as typical, was placed before us. The entries run thus:
Rs. A. P.
Gujasta jama ... 48 2 0
Akhrajat (expenses) ... 10 0 0
Total ... 68 2 0 B.F.
Izafa (increase or
augmentation) ... 3 10 0
61 12 0
6. It is argued from the entry of Izafa, that rent was variable. It is by no means clear that the rent was increased at the date of the dowl or whether the increase was at some previous time, but even if the rent was increased on that date, it being previous to the Permanent Settlement this increase is of no consequence. On the other hand at the top of the column giving the figures the words 'Mokarrara Sieca' appear. The respondents contend that this shows that the rent was fixed, instead of being variable. The dowls therefore cannot be said to lead to any inference in plaintiff's favour. We shall next deal with the effect of the assessment in 1848. It appears to us on a review of the proceedings that the fact that the tenures were Mokarari was never questioned. In more than one place in the correspondence of the revenue authorities they were so described, and the whole trouble was due to the areas not being mentioned in the dowls. The revenue officers were doubtful about their right to assess the jama and expected to lose the appeal in the Sadar Dewany Adalat It was however decreed on a ground not taken by the Revenue Officers that the Civil Courts had no jurisdiction in the matter. The talukdars have never accepted the assessment, and, as has been stated before, they deprived themselves of a substantial advantage in not accepting it. Their submission to the assessment appears to be due to compulsion. No inference therefore can be drawn in favour of the landlord as to the conditions of the tenancy by reason of this assessment. Moreover it should be observed that the Special Judge finds that if there was increase in any case it was for increase of area, and there are materials on the record from which such a conclusion may be drawn. The case of Bamapada v. Midnapore Zemindary Coy. (1912) 16 C.L.J. 322 was relied on in support of the proposition that the fact that the rent was once altered shows that it was not fixed. That case is quite different from the present. There the tenancy was created in 1817 and the burden of proof was on the tenant to establish that the rent was fixed. There was no direct evidence, but the Court was asked to make an inference in favour of the tenant from certain circumstances. It was found that the rent was once enhanced and the enhanced rent was paid without protest. On these circumstances it was held that this enhancement negatived the inference as to the fixity of rent. It is quite clear that all the grounds of that decision are different from the facts of the present case. For these reasons, in our judgment this contention of the appellant fails. Our decision on this question is sufficient for the disposal of the appeals. But as the other question raised was also fully argued we think we should record our opinion on it.
7. It is urged that when the zemindary was confiscated it was held by the Government on behalf of the heirs of Mahammad Ali. This also is a question of fact and has been found against the appellant. Reliance has been placed by the appellant on the observations of the Privy Council in the case of Beer Pertab Sahee v. Bajender Pertab Sahee (1867) 12 M.I.A. 1. those observations however cannot affect the status of the talukdars in this case, as they were not made with reference to the rights of any third parties that might hare grown during the period the Government was in possession of the property, but only with regard to the nature of the right conferred by Government when the property was restored and cannot be applied to the present question. There is ample evidence on the record in support of the finding that Government held the estate for itself. The malikana paid for some time to the heirs of the rebel was discontinued as paid by mistake and the Government applied the revenue for its own purposes for a considerable number of years. There are also expressions in the correspondence of the officials which show that Government did not hold the property on behalf of any person. Rule 485 of the Bengal Survey and Settlement Manual, 1917, relied on by the appellant does not seem to be in point. If the Manual of 1917 may be referred to, the appropriate rule seems to be Rule 473, para 1 which runs thus : 'The proprietary right vests in the Government in the case of the following lands...(3). Lands forfeited to Government for certain offences against the state.' There is therefore evidence on which the special Judge was entitled to hold that the heirs of Mahammad Ali had no interest m the estate before the grant in 1869, which was an act of the Sovereign authority as a matter of grace and favour. The taluks were formed long before the zemindary, and they were described as Decennial or Dowl taluks in the official correspondence. These talukdars would therefore come within the description of talukdars in the 3rd clause of Section 5 of Regulation VIII of 1793 which was not repealed when the zemindary was created. The rent of these taluks therefore cannot be enhanced. Hemanta Kumari v. Jagadindra (1894) 22 Cal. 214. Both the grounds urged on behalf of the appellant therefore fail, and the appeals must be dismissed.
8. We may mention that two judgments of this Court were brought to our notice in which the result was different with regard to some other taluks within this zemindary. Those cases also came up on second appeal and depended mainly upon the findings of fact arrived at by the lower Appellate Court in those cases. We have considered the judgments carefully and we do not think that any question of law has been decided in either of those cases which is applicable to the facts found by the lower Appellate Court in the appeals before us. The respondents will be entitled to their costs in those cases in which they have appeared. The hearing fee is assessed at two gold mohurs in each case.