1. In this case there are thirteen appeals arising out of the same set of facts. In the course of settlement the matter had been tried in the first instance by the Settlement Officer and then went on appeal to the District Judge of Nadia. In the proceedings under Section 105, Bengal Tenancy Act and in the record of rights the tenants had been recorded as occupancy raiyats. When the landlord applied for settlement of fair rent the tenants maintained that they were really holding on mokrari terms and they claimed under Section 50, Bengal Tenancy Act, that they had paid rent at the uniform rate so long that they were entitled to the presumption that they were tenants at a permanent rate of rent. It would appear that for the years 1886-87 the landlord produced jama wasil baki papers which purport on the face of them as evidence to show that for these years a different rate of rent was applicable to these tenancies.
2. Now the question is whether the learned District Judge has correctly dealt with the contention that these jama wasil baki papers (in the absence of proof that the writer or the maker of the entries therein at the date of the trial was dead or could not be procured without unreasonable expense or was otherwise such a person as is contemplated by Section 32, Indian Evidence Act) merely amount to evidence under Section 34, Indian Evidence Act, that is to say, evidence which in the presence of other substantive evidence may be used as corroborative but which cannot be regarded as proving any fact by itself. Now the position is that there was no proof that the writer was dead or any of the other facts required by Section 32 as the evidence stood. Therefore the position was that the jama wasil baki papers were admissible because they were admissible under Section 34. But there was no other evidence which enabled the Court to base upon it a finding to the effect that their contents were true and proved the facts alleged by the landlord. What the learned District Judge did is this : he said first of all that that was not the objection taken before the settlement officer; he said secondly, that that was not the objection taken before him.
3. It appears that the memorandum of appeal before the District Judge contains as grounds first that the entries were not admissible and secondly that their evidentiary value was not sufficient to rebut the presumption under Section 50, Bengal Tenancy Act. The learned Judge's view accordingly was that if the express point had been taken that these entries were admissible but were only admissible as corroborative evidence in the absence of proof of toe fact within Section 32, Indian Evidence Act, then what he should have done would have been this. He would have found whether or not there was any real contention that the writer was still alive and if so would have granted a remand in favour of the landlord sooner than see his claim defeated by the omission of the evidence on such a point. But the learned Judge said because this exact point had cot been taken he would not order a remand and he proceeded upon this evidence which by law is not substantive evidence at all as though it were substantive evidence. He said he should do that by refusing to allow the tenant to take the point since it was not properly taken in the memorandum of appeal. Speaking for myself I cannot uphold that way of dealing with this matter. To my mind it is very necessary that every discouragement should be given to an invention of new points at a late stage-points which might have been met if taken properly by adducing further evidence. But even so I do not think that the District Judge's way of dealing with this matter can be supported. The moment it was shown that the jama wasil baki papers were admissible at that moment it became evident that the tenants could not be prejudiced because they did not object to their admissibility. The evidence having come in at the end of the day, as a matter of argument arose the question of its effect, and it may be that the exact point was not argued before the Settlement Officer. But the documents were attacked in the memorandum of appeal - they were attacked as inadmissible in evidence altogether and also upon the ground that their evidentiary value was not sufficient to rebut the presumption under Section 50. What the appellant meant by that one cannot of course say but that is an exact description of the objection which was ultimately urged because the evidentiary value of those documents was this that they were corroboration simply and could not base any finding of fact. The memorandum of appeal being in that form I do not think that the learned District Judge was right to be so very strict as against the tenant as in fact he purported to be. The position was, that if these jama wasil baki papers were to be used at all, it was necessary for the plaintiff to induce the learned Judge as an indulgence to him to grant him a remand. The fault was the plaintiff's and not of the defendants.
4. In my judgment the learned District Judge might very well have said to the defendants that they must remember that if they really had no reasonable belief that the writer was alive it might very well be that he would in the end visit them with the cost of taking further evidence upon remand. What the learned Judge has said is that he will proceed upon evidence which the law says, is mere corroborative evidence as though it was substantive evidence which under the law it is not. In my judgment it was at the plaintiff's risk to induce the learned Judge to remand these appeals. The way in which the learned Judge has dealt with the matter is not satisfactory. Accordingly we allow the appeals and remand the cases to the lower appellate Court with the directions to that Court to take evidence on both sides upon the question whether the writer of these jama wasil baki papers was or was not alive at the time of the trial.
5. If the learned Judge finds that the writer was alive at the date of the trial of the suit then he should dismiss the claim of the landlord. But if the Judge finds that the writer was dead at the date of the trial of the suit then he will allow the claim of the landlord.
6. The costs of these appeals to abide the result.
7. It remains to deal with appeal 12 of.1925. This appeal is not affected by the question of jama wasil baki papers. The contention of the appellants in that case is that the patta itself shows that the tenancies were created to be permanent tenancies at a fixed rate of rent and that there is in the four corners of the document enough to show that the contract of the parties precluded they landlord from enhancing the rate of rent. That is a case which is very similar to the case Krishnendra v. Kusum Kamini , and looking at the patta in that case I find a strong analogy to the patta in the case before its. There again we have reference to 'generation to generation.' There too we have a clause saying that the tenants were not to get remission of rent without any parallel clause that the landlord was not to get enhancement. The phrase is similar with reference to payment of cesses separately and in addition to rent. The principle being that prima facie the rent is liable to enhancement unless the landlord has precluded himself by contract from claiming such enhancement, it is necessary to have definite materials in the patta before coming to the conclusion that the common law has been excluded.
8. On the whole I sea nothing in this patta that is sufficient to justify this Court in saying that the landlord by the terms of patta has precluded himself from enhancement. I, therefore, think that this appeal must be dismissed with costs, Hearing fee one gold mohur in each case.
9. I agree.