1. This is an appeal from a decision of the learned District Judge of Burdwan, dated the 23rd June 1924, which reversed a decision of the revenue officer of Asansole, dated the 23rd September 1922. The appeal -arises out of proceedings commenced by the plaintiff who is now respondent before, us under Section 105 of the Bengal Tenancy Act, for settlement of fair and equitable rent in respect of lands recorded in Khatian No. 110 of village Kulla Thana, Asansole, in the names of the defendants as permanent non-mokarari tenure-holders under the plaintiff-respondent. The defendants-appellants contested the case on the ground that they are holding the disputed land in respect of which proceedings under Section 105 were started on a fixed rental as a permanent, heritable, transferable and mokarari kheraji brahmoter tenure and that the rent of the tenure is not liable to enhancement at any time.
2. The settlement officer held that the defendants-appellants established that they had been paying rent at a uniform rate of Rs. 3-3-0 from more than 20 years before these proceedings were started, and that they were entitled to the benefit of the presumption under Section 50 of the Bengal Tenancy Act, and that they must be recorded as persons who had been holding the tenure on the date of the permanent settlement at the same fixed rent. The settlement officer referred to the evidence, as furnished by the plaintiff, for the purpose of rebutting the presumption, and he held that that evidence was insufficient and that the existing rent of the tenure in question is the fair and equitable rent, and that the defendants should be declared to be permanent tenure-holders holding the lands in suit at a rent fixed in perpetuity. Against this decision of the revenue officer an appeal was preferred to the Special Judge, and the Special Judge came to the conclusion that the holding in suit was a non-mokarari tenure and liable to enhancement of rent; and, after so holding, he remanded the case to the lower Court for assessment of fair and equitable rent as applied for by the plaintiff. Against this decision of the Special Judge this second appeal has been preferred.
3. A preliminary objection has been taken to the hearing of this appeal by the learned vakil for the respondent, and it has been argued that as the order of the Special Judge was an order remanding the case to the Court of first instance no second appeal lay to this Court having regard to the provisions of Section 109A, of the Bengal Tenancy Act, which only allows appeals from decisions which have the effect of decrees. In support of this contention reliance has been placed by the learned vakil for the respondent on the case of Mothur Chandra Majumdar v. Tara Sankar Ghose  7 C.W.N. 440, and another case in Debi Prosad Bhakat v. Official Trustee of Bengal A.I.R. 1923 Cal. 333. It has also been argued that a second appeal is also barred as the settlement officer settled fair and equitable rent after the remand and before the appeal was filed by the defendants-appellants to this Court. It is said that the defendants have no right of second appeal to this Court, because it is contended that the right of appeal from the interlocutory order ceased with the disposal of the suit.
4. With regard to the first branch of the preliminary objection the present case is distinguishable from the case of Mothur Chandra v. Tara Sankar  7 C.W.N. 440, to which I have already referred. It does not appear from that decision what the nature of the remand order was. In the present case what the settlement officer did was to decide the cardinal point in the suit or proceeding, namely, as to what was the status of the defendants, that is, whether they were non-mokarari tenure-holders or they were permanent tenure-holders paying rent which is fixed in perpetuity. That was the cardinal issue in the proceeding and that was determined by the Special Judge. The liability of the tenure to enhancement of rent was the matter which was the principal issue in the proceedings. What the Special Judge directed the settlement officer to do was merely to fix fair and equitable rent. That was really a question which depended on the determination of the cardinal point in the proceedings, namely as to whether the tenure was liable to enhancement or not. The order of the Special Judge was, therefore, a decision within the meaning of Section 109A. I may also state here that a view, which is somewhat different from the view taken in the case in Mothur Chandra Majumdar v. Tara Sankar Ghose  7 C.W.N. 440, has been taken in two decisions of this Court to one of which my learned brother was a party. This last decision is the case of Krishnadas Acharji Choudhury v. Samsan Ali Sheikh A.I.R. 1923 Cal. 431. The earlier decision is the case of Monmatha Nath Dey v. Gadadhar Mana  45 Cal. 638. I do not think that the first branch of the preliminary objection can prevail, and which consequently fails.
5. With regard to the second branch of the preliminary objection the decisions which have been placed before us show that where an interlocutory order has been passed resulting in a remand to the lower Court for trial of the suit on the merits, the right of appeal from the interlocutory order ceases with the disposal of the suit. But we cannot regard the order of the Special Judge in this case as an interlocutory order and we think that it is conceded by the learned vakil for the respondent that it was not an interlocutory order, but it is stated that it was an intermediate order. An order is either interlocutory or final. With regard to the question as to whether the tenure was liable to enhancement of rent or not, the decision of the Special Judge was a final decision and the order was final and not interlocutory : see Rahimbhoy v. Turner  15 Bom. 155. This case is, therefore, distinguishable from the class of cases to which reference has been made at the Bar. The second branch of the preliminary objection therefore fails. I now proceed to deal with the case on its merits. The reasons given by the Special Judge for holding that the presumption under Section 50, Bengal Tenancy Act, available to the defendants-appellants by reason of the fact that it has been shown in this case that they have been paying rent at a uniform rate of Rs. 3-3-0 for 20 years before the institution of the suit has been rebutted, are insufficient in law. The Special Judge relied on three documents produced by the plaintiff-respondent. The first document which is earliest in point of time is thoka of the year 1218 B.S. (1811). The second document on which the learned Judge has relied is hastbud of the year 1249 B.S. (1842). The third document on which he has relied is a rent decree of the year 1892.
6. With regard to the thoka of 1218 B.S., it appears that the rent with regard to mauza Bishigha is shown there to be Rs. 2. The tenant's name in that thoka is Subaram Purohit. But no evidence has been adduced in this case to show that this tenure of Subaram is a tenure which was held by the defendant company and which was the subject-matter of the proceedings under Section 105. The burden of rebutting the presumption was on the plaintiff, and by the production of this thoka alone he cannot be held to have rebutted the presumption seeing that he has not been able to establish that the lands mentioned in the thoka. are lands which are identical with the lands in the tenancy now in question.
7. The second document, the hastbud, shows only a small variation of four pies. This is a very insignificant variation and cannot be held to be sufficient to rebut the presumption under Section 50.
8. The third document is a rent decree of 1892 on the construction of which the Courts below have held that there is a. variation of one anna from the rent of Rs. 3-3-0. We have had the decree placed before us, and we do not find anything in that decree to indicate that the Court determined in that proceeding that the rent payable was Rs. 3-4-4. All that the decree states is that the claim was made at the rate of Rs. 3-4-4.. The entire amount was not decreed, and it has been contended on behalf of the defendants-appellants that that decree is inconclusive seeing that it is proved in this case that both before and after the-decree the rent paid was not at the rate of Rs. 3-4-4 pies, but at the rate of Rs. 3-3-0. It has further been argued on behalf of the defendants-appellants that one single variation, assuming that the decree was at the rate of Rs. 3-4-4 is not sufficient to rebut the presumption. We think that these contentions are sound and must prevail. It was for the plaintiff to establish that the decree-showed beyond doubt that the rental was at a higher rate than Rs. 3-3-0 in order to rebut the presumption under Section 50. This they have failed to do.
9. The materials upon which the learned Special Judge proceeded are, in my opinion, wholly insufficient in law to rebut the presumption under Section 50. We therefore set aside the judgment and decree of the Special Judge and restore the decision of the revenue officer, dated 23rd September 1922, and the defendants will be declared to be permanent tenure-holders holding the lands in suit at a, rent fixed in perpetuity.
10. Each party will bear its own costs in all Courts.
11. I agres.