1. These appeals arise out of proceedings under Sections 105 and 105 (a) of the Bengal Tenancy Act and the question is whether the presumption arising from payment of rent at uniform rates for 20 years that the tenure has been held at the same rate of rent from the time of the permanent settlement has been rebutted by certain papers relied upon by the Courts below. The three papers referred to by the learned Judge are: (1) the writ of attachment, kistibundi papers (2) the jamawashil baki papers of 1797 and (3) the butwara papers of 1800 prepared by the Collector. The learned Judge was of opinion that the first two were not of much help, but the third was a more accurate document and as it did not contain any mention of those taluks, he held that they were not in existence at the time of the permanent settlement. Now, the absence of an entry may be evidence though its effect is to be determined in the light of the general evidence: [see the case of Imambandi v. Mutsaddi A.I.R. 1918 P.C. 11 and Tara Kumar Ghose v. Kumar Arun Chandra Singh A.I.R. 1923 Cal. 261], and if it is admissible in evidence it is for the Court dealing with the facts to attach such weight to it as it thinks proper.
2. It is contended, however, on behalf of the appellants that the documents, the butwara papers should not be treated as evidence in the absence of a detailed information as to the history of the document when it was prepared, by whom, in whose presence and for what purpose; and that the case should be remanded for a fuller enquiry as was done by the learned Judges in the case of Tara Kumar Ghose v. Kumar Arun Chandra Singh A.I.R. 1923 Cal. 261 referred to above. Reliance has also been placed upon the observations made in that case at page 394, namely,
The mere circumstance that the names by which the tenures are known at present, cannot be traced in the list does not show conclusively that the tenures are not included therein. As the Assistant Settlement Officer pointed out, the names of the taluks are frequently changed as they pass from hand to hand, and very often a taluk is sub-divided, whereupon new names are given to each of the fragments.
3. It appears, however, that in the present case there was information on the record as to the history of the butwara papers. The first Court in its judgment says that from a letter written by the Collector of Tippera to the Board of Revenue dated the 1st June, 1795, it appears that a butwara was made of the entire Aminabad Pargana by the Collector at the time when the zamindari was in the khas management of Government in consequence of the zamindar having defaulted in paying the Government revenue. The collection papers and the butwara papers were prepared at that time by the Collectors, Messrs. Thompson and Dun-bridge. It appears that a 9-annas share was purchased by one Kalitara Chowdhurani and that share was attached and the butwara appears to have been made for the purpose of partitioning the 9-annas share. It is true, it does not appear that the butwara papers were prepared in the presence of the tenants. The question we have to consider however is, not whether the butwara papers are binding upon the tenants but whether they are admissible in evidence, The Court of first instance has considered the argument that the Mudafat of the taluks might have subsequently changed on account of succession or transfer cannot be accepted in the absence of any evidence adduced by the defendants. The lower Court also observes that:
It is a patent fact that in the case of old Taluks no change is generally made in the original mudafat on account of succession or transfer unless the Taluks are split and new settlement made thereof which being creations subsequent to the Permanent Settlement would depend on custom or contract as to their liability to enhancement of rent or not.
4. The butwara papers were an item of evidence to be considered. They did not contain the names of the taluks in dispute and from that fact, as well as from other papers, the Courts below held that these taluks had not been in existence at the time of the Permanent Settlement. We are unable to hold that the Court below is wrong in law in so holding or that there are circumstances in the present case which compel us to remand the case to the lower Court for further investigation as was done in the case in Tara Kumar v. Arun Chandra A.I.R. 1923 Cal. 261.
5. It has been argued that the butwara took place in 1795, when the estate was in the khas management of Government and that the permanent settlement was in 1800, This appears to be so from one passage in the judgment of the Court of first instance, but in a subsequent passage that Court says that the butwara was made to put the zamindars into possession by orders of the Board of Revenue after the permanent settlement had been effected with them. That being so, we do not think that there is anything in this contention.
6. The result is that these appeals fail, and they are accordingly dismissed with costs.