1. The only question for determination in the suit out of which this appeal arises was whether the plaintiff was a raiyat at fixed rates or not. The plaintiff relied on Section 50 of the Bengal Tenancy Act and proved that as a matter of fact she had paid the sum of Rs. 23-14 excluding fractions of annas for the last 60 years. If this sum was paid as the rent of her land, there can be no doubt that she was entitled to the benefit of the presumption raised by Section 50 and to be recorded as a raiyat at fixed rates.
2. The lower Court has decided against the plaintiff on the ground that this sum was not in the past paid in its entirety as rent. It appears that up to the year 1282 this sum was recorded in the receipts given to the plaintiff as made up of the sums of Us. 22-9 as rent and Rs. 1-5 as jalaparabi. The learned District Judge holds that jalaparabi was an abwab and was not therefore rent as defined in the Bengal Tenancy Act. After 1282 the rent recorded in the receipts given to the tenant was entered as Rs. 23-14 without any details. The District Judge says in his judgment: 'There is a legal presumption that every person knows what his lights are. So the necessary inference to be drawn from the fact that the plaintiff consented from 1282 and onwards to pay the whole of the pecuniary consideration in return for which she hold her land as rent is that she agreed to her rent being raised.' It appears to us that the fact upon which the District Judge based this inference, that is to say, the fact that the plaintiff consented up to 1282 to pay the whole sum of Rs. 23-14 as rent is a mere assumption of the District Judge's and does not legally or logically follow from the evidence.
3. It has been argued that jalaparabi is not an abwab and authorities have been cited to us in support of this contention. We think that it would be difficult now to hold that jalaparabi is anything but an abwab, but it is unnecessary in our opinion to decide this question in this appeal. If it is not an abwab the foundation of the District Judge's decision goes. But even assuming that it is an abwab there is nothing in these papers to warrant the conclusion that it is not still being realized as an abwab even at the present time. We are informed that there is no evidence on the record of any agreement in 1282 between the plaintiff and her landlords to consolidate the sums of Rs. 22-9-0 and Re 1-5-0 into one rent for the land. There is nothing but the fact that in the receipts granted after 1282, the details of which the total sum of Rs. 23-14 consisted, are omitted. It is notorious that although abwabs have been illegal for more than a century yet they are still realized and tenants more or less willingly pay them all over the provinces. And it would be most dangerous to draw from the fact that these abwabs are paid the inference that they are now legally payable. If as a matter of fact this plaintiff has been paying these abwabs since 1282 that would not justify the inference that those abwabs are lawfully payable and yet if she has as a matter of fact been paying them, there is nothing to be surprised at in the fact that she has made no formal protest against the form of the receipts which have been given to her.
4. We think, therefore, that the learned District Judge has erred in law in assuming merely from the form of the receipts which have been granted since 1282 that the plaintiff must necessarily have consented to pay the whole of the sum of Rs. 23-14-0 as the consolidated rent of her land. This one piece of evidence in our opinion does not justify the conclusion arrived at.
5. The result is that the appeal will be allowed and the plaintiff will be declared to be entitled to be recorded as a raiyat at fixed rates.
6. The plaintiff is entitled to her costs in this appeal.