1. This appeal has arisen out of an application under Section 105, Ben. Ten. Act, for settlement of fair and equitable rent. The application was made by the landlord in respect of a tenancy which had been recorded as a tenure belonging to the defendant with an area of 24 bighas odd at a rental of Rs. 29 odd in the finally published Record of Rights. In the Record of Rights the tenure was also shown as a mokarari tenure. In the proceeding under Section 105 a question was raised as to whether the tenure was mokarari or not. The Assistant Settlement Officer came to the conclusion that the existing rent of the tenure was fair rent and he held also that although the tenure was a permanent one the rent was liable to enhancement and he directed an entry to be made in the Record of Rights accordingly. Against this decision of the Assistant Settlement Officer there was an appeal taken by the tenant to the Special Judge but without any success. Now the tenant-defendant has appealed to this Court.
2. On behalf of the appellant there were three points taken before us in the beginning. The first one was that there had been no settlement of fair and equitable rent inasmuch as the Assistant Settlement Officer held that the existing rent was fair ; the second one was that the finding of the Revenue Officer that the rent was liable to enhancement ought not to have been entered in the Record of Rights inasmuch as the finding had bean arrived at under Section 105-A, Ben. Ten. Act; and the third and the last point was that in view of the fact that the tenure was result of an amalgamation of a three-fourths share of a very old tenure of the name of Ram Lochan Dhar and a three-fourths share of a comparatively recent tenure of the name of Bhaba Taran Dhar an entry ought to have been made in the incidence column of the Record of Eights to show that in the present tenure there was a certain area which had been a part of a mokarari tenure, the contention being that Ram Lochan's tenure had really been mokarari. As regards the first two points the plain meaning of the expression 'Settlement of fair and equitable rent' and a reference to the provisions of Section 107, Sub-Section 2, Ben. Ten. Act, would show that there is no substance in either of them. Mr. Hiralal Chakrabarty when he realised the futility of these two grounds of his frankly stated before us that he would not press either of them.
3. His third ground however was not, in my opinion, without some substance in it. It appears that the tenure of the defendant, as I have observed before, is the result of amalgamation of two tenures three-fourths share of each, one belonging to Earn Lochan and the other to Bhaba Taran Dhar. It appears also that the origin of Ram Lochan's tenure was not known. The contention of the appellant that a note may be made in the incidence column of the Record of Rights to show that the present tenure contains a certain area which at one time formed a portion of mokarari tenure was opposed before us on behalf of the respondent and this opposition was made on two grounds. First of all, it was said that such an entry would not come under any of the clauses of Section 102. Ben. Ten. Act, and secondly, that it could not be said for certain that Ram Lochan's tenure had really been a mokarari one. As regards the first ground I am of opinion that an entry like the one sought for may clearly come under Clause. (h), Section 102, which says that special conditions and incidents, if any, of a tenancy may be noted in the incidence column.
4. As regards the second ground, namely that it cannot be said for certain that Ram Lochan's tenure had really been a mokarari one I am of opinion that this ground is untenable. As observed before, the origin of this tenure is unknown and there is the fact that there was a very large number of dakhilas produced by the defendant to show that the rent paid for this tenure had been uniform for a very large number of years. On behalf of the respondent it was said that the presumption on which the defendant would rely from this uniform payment of rent under Section 50, Ben. Ten. Act, cannot apply to the present case inasmuch as the holding was a tenure and not raiyati. But as has been held in two decisions of this Court, namely, in Tara Kumar v. Arun Chandra AIR 1923 Cal 261 and Krishna Kamini Dasi v. Nil Madhab Shah AIR 1923 Cal 66, the presumption under Section 50, Ben. Ten. Act, may apply to tenure as well. That being so, I am of opinion that it cant safely be inferred that Ram Lochan's tenure was a mokarari one and as there could be no valid objection to an entry like the one sought for being made in the 'incidence' column of the finally published Record of Rights I would order that an entry be made in that column to the effect that three-fourths of the 20 bighas and 8 cottas (which was the total area of Ram Lochan's tenure) out of the present holding was a part of a mokarari tenure. This appeal is dismissed subject to the variation in the decree of the lower appellate Court as-indicated above. We make no order as to costs in this Court.
5. I agree.