1. S. A. No. 1756 of 1931.- This appeal is by a landlord who had applied for settlement of fair and equitable rent in respect of a tenure claiming enhancement under Section 7(2), Ben. Ten. Act. The application of the landlord was opposed by the tenant, on the ground that rent payable in respect of the tenure was not liable to enhancement although the entry in the settlement Record of Eights as finally published showed that the rent was liable to enhancement. The Assistant Settlement Officer by whom the case was heard in the first instance came to the conclusion on the materials placed before him by the parties concerned that the evidence produced in the case was sufficient to rebut the presumption of correctness attached to the entry in the finally published khatian, and that the rent payable in respect of the tenure in question was not liable to enhancement. The decision of the Assistant Settlement Officer dismissing the landlord's application for enhancement of rent was affirmed on appeal by the learned Special Judge, 24-Parganas. The landlord has appealed, to this Court.
2. The first question arising for consideration in the appeal is whether the Courts below are right in presuming in favour of the tenant respondent in this Court that the tenure in question was held from the time of the permanent settlement. On the materials placed before the Court, the date of the origin of the tenure could not be ascertained. There was no doubt a presumption in favour of the landlord under Section 103-B, Ben. Ten. Act, arising from the entry in the settlement khatian that the rent of the tenure was enhancible; but the evidence adduced in the case raised a counter-presumption in favour of the tenant, from the proof of the existence of the tenure from the year 1818 (l225 B. S.). Whether a presumption should be drawn from a certain state of facts proved before the Court, is a question of fact; and both the Courts have come to the conclusion that from the facts proved, the inference could be drawn that the tenure existed at the time of the permanent settlement. The primary onus on the tenant was shifted on to the landlord by the evidence before the Court as to the existence of the tenure in the year 1818 and by the further evidence showing pre-existence of the same: see in this connection the case of Annada Chandra v. Kunja Behari (1908) 8 CLJ 177. If the tenure in question has been held from the time of the permanent settlement, its rent could not be enhanced except as provided by Section 6, Ben. Ten. Act. It was for the landlord to prove that he was entitled to enhance the rent payable in respect of the tenure by the conditions under which the tenure is held.
3. The Assistant Settlement Officer held that no part of the evidence proved any of the conditions laid down in Section 6, Ben. Ten. Act, and the learned Judge in the Court of appeal below has agreed with that view of the case. The burden of proof was on the landlord to establish, the conditions, and if the landlord could not establish that by the conditions under which the tenure was held he was entitled to enhance the rent his claim for enhancement must fail. In the case before us, the rent was changed once in the year 1818, and from that fact only we are asked to hold that the rent of the tenure was enhancible, the conditions under which the tenure was held being that rent could be enhanced by the landlord. In support of this position reliance was placed on behalf of the appellant;, on the judgment of this Court in the case of Nurul Huq v. Birendra Kishore : AIR1924Cal133 , in support of the proposition that where the original nature of the tenancy is not known, the fact that the rent has been altered once negatives the hypothesis that the rent has been fixed in perpetuity. Mookerjee, J., in this judgment in the case mentioned above, dealing with the facts proved before the Court in the case before him, stated as follows:
Here the history of the settlement of 1846 has been unravelled in detail; it has been ascertained beyond doubt that the rate then taken as the basis was adopted as the rate fair and equitable at that time; and there was no intention to fix that rate in perpetuity. We hold accordingly that the Special Judge was right in his conclusion that the tenures are not held on condition that the rate of rent was perpetually fixed an Rs. 3.16.6 in 1846, and that fair and equitable rent may accordingly be settled now not withstanding the fact that the rate of rent has not been altered since that period.
4. In view of what has been set out above it is not possible to say that in the case before us it must be held that the condition under which the tenure was held was that the rate of rent payable in respect of the same was enhancible simply on the finding that the rent was changed in the year 1818. The basis of the judgment in Nurul Huq's case AIR 1924 Cal 133, referred to above, was that from the history of the settlement and from other evidence in the case it was possible to ascertain beyond doubt that there was no intention to fix the rate of rent in perpetuity. We have nothing before us in the present case to enable us to come to the conclusion that the condition of the tenancy was such that the landlord had the right in him to enhance rent under the provisions of Section 6, Ben. Ten. Act. There is nothing to indicate that the history of the tenure in question and the intention of the parties concerned were such that it would be inferred in favour of the appellant in this Court, that there was no intention to fix the rent in perpetuity notwithstanding the fact that the rate of rent has not been altered since the year 1818. In our judgment the decisions arrived at by the Courts below are correct and must be affirmed, and we direct accordingly. The appeal is dismissed with costs. The hearing fee is assessed at two gold mohurs.
5. S. A. No. 1757 of 1931.-This appeal is to be governed by our judgment in appeal from Appellate Decree No. 1756 of 1931. This appeal is dismissed, the decision of the Court of appeal below being affirmed. There is no order as to costs in this appeal as the respondents have not appeared.