1. This is an appeal on behalf of the tenants defendants in a proceeding under Section 105 of the Bengal Tenancy Act. After the final publication of the Record of Rights, in which the tenants were entered as occupancy-raiyats, the plaintiff landlord applied under Section 105 for settlement of fair and equitable rents. The defendants resisted the claim principally on the ground that they held at fixed-rates of rant and their rent was, consequently, not liable to enhancement. This objection has been overruled by the Courts below and a decree made in favour of the plaintiff. In this appeal that decree has been assailed substantially on two grounds; namely, first, that the proceeding was not maintainable under Section 105 of the Bengal Tenancy Act and that the proper remedy of the landlord was by way of a suit for enhancement of rent under Section 30 of the Bengal Tenancy Act; and secondly, that the decision of the Settlement Officer, confirmed on appeal by the Special Judge, is baaed on evidence inadmissible in law.
2. In so far as the first of these contentions is concerned, there is clearly no substance in it. The appellants have contended that a proceeding under Section 105 can be instituted only when there is no rent payable by the tenant to the landlord under the terms of a contract between the parties; in other words, that the provisions of Section 105 are applicable only when no rent has been fixed by agreement of parties. This view is negatived by sub Section 4 of Section 105 which provides that in settling rents under the section, the Revenue Officer shall presume, until the contrary is proved, that the existing rent is fair and equitable and shall have regard to the rules laid down for the guidance of the Civil Court in increasing or reducing rents, as the case may be. The appellants have contended that the rejection of their view leads to an anomaly, namely, whereas a decree in a suit for enhancement of rent under Section 30 is liable to be challenged by way of a first and a second appeal, an order for settlement of rent under Section 105 can be challenged by way of a first appeal only, as provided in Section 109A of the Bengal Tenancy Act. In our opinion, there is really no anomaly involved in this result. The Legislature intended that as in a proceeding under Section 105 the rent is settled by a Revenue Officer, his decision should not be treated in the game way as the decree of a Civil Court under Section 30. The view we take is in accordance with that adopted by Mr. Justice Carnduff in the case of Sheodhani Pandey v. Maharani Beni Pershad Keori 16 C.L.J. 67 : 16 Ind. Cas. 935. The first contention of the appellants, therefore, fails.
3. In so far as the second contention of the appellants is concerned, it is necessary to premise that their defence was that they held at fixed-rates of rent. They produced rent receipts for 20 years in order to prove that they held at a uniform rate of rent for that period, and they relied upon the presumption mentioned in Sub-section 2 of Section 50 of the Bengal Tenancy Act; because, notwithstanding the final publication of the Record of Rights, it was competent to them to do so as laid down by a Full Bench in the case of Pirthi Chand Lal v. Basarat Ali 37 C. 30 : 13 C.W.N. 1149 : 10 C.L.J. 343 : 3 Ind. Cas. 449. As these rent receipts were believed by the Court, the defendants became entitled to avail themselves of the statutory presumption mentioned in Section 50. The plaintiff, thereupon, produced his collection papers to show that the rent had varied from time to time at an earlier period of the tenancy. The main question raised in this appeal relates to the admissibility of these collection papers. They were produced by an officer of the landlord who deposed that they were in his custody. No question was put to him as to who had written the papers, nor is their any evidence on the record to show by whom the rents had been collected and when and by whom the entries in, the collection papers had been made. Under these circumstances, it has been contended by the appellants that these collection papers are not admissible under Section 34 of the Indian Evidence Act; reliance has been placed on their behalf upon a number of judicial decisions to which we shall presently refer, while it has been suggested on behalf of the respondents that there is a conflict of judicial opinion upon this subject.
4. The cases to be found in the books may be grouped into two classes; namely, first, those that relate to jamabandi papers, and, secondly, those that relate to jamawasilbaki papers. For our present purpose, there is no difference between these two classes of papers, though they are not identical in their nature. Jamabandi papers show the quantity of land held by each cultivator, its different qualities, its rate of rant for each kind, the total rent for all the lands in each cultivator's possession, and, lastly, the grand total of all the lands of every kind held by him. The jamawisilbaki papers, on the other hand, are yearly accounts showing the total rent demandable for the current year, the balance of the previous year, the amounts collected during the year, and the balance due. With regard to jamabandi papers, it was held by this Court under Act II of 1855 that they were not independent but merely corroborative evidence: Chamarnee Bibee v. Ayenoollah Sirdar 9 W.R. 451; Gajjo Koer v. Syed Ally Ahmed 14 W.R. 474 : 6 B.L.R. Ap. 62; Dhanookdharee v. Toomey 20 W.R. 142 and Kishore Dass v. Pursuan Mahtoon 20 W.R. 171. The case of Chamarnee Bibee v. Ayanoollah Sirdar 9 W.R. 451 arose out of a suit for enhancement of rent and the collection papers were produced by the landlord to negative the presumption of fixity of rent, which, arose in favour of the tenants upon proof of payment, of rent at a uniform rate for the statutory period. In the case of Beejoy Gobind Burral v. Bheekoo Roy 10 W.R. 291 Mr. Justice Jackson doubted whether these collection papers could at all be treated as books of account. That doubt, however, has not been shared by the learned Judges who decided the later cases. The decisions in D'Silva v. Raj Coomar Dutt 16 W.R. 153; Enayetoollah v. Nubo Coomar Sircar 20 W.R. 207; Reazooddeen v. McAlepine 22 W.R. 540 and Watson & Co. v. Mohendro Nath Paul 23 W.R. 436 which are discussed in the case of Akshaya Coomar Dutt v. Shama Charan Patitanda 16 C. 586 where Taru Patur v. Abinash Chundar 4 C. 73 at p. 79 was doubted, are not of any real assistance in the determination of the question before us, as there the question raised was, whether jamabandi papers prepared under Regulation VII of 1822 could be made the foundation for enhancement of rent, unless it was established that the rent as entered therein had been agreed to and accepted by the tenants. With regard to jamawasilbaki papers, it was ruled in the cases of Gopal Mundul v. Nobo Kishan 5 W.R. Act X Rulings 83; Kheerononee Dassee v. Beejoy Gobind Bural 7 W.R. 533; Beejoy Gobind Burral v. Bheekoo Roy 10 W.R. 291; Shio Suhaye v. Goodur Roy 8 W.R. 328 and Ram Lall Chuckerbutty v. Tara Soondari 8 W.R. 280 which were all decided under Act II of 1355, that these collection papers were not independent evidence of the condition under which the tenants held. Some of these cases, for instance, those of Kheeromonee Dassee v. Beejoy Gobind Bural 7 W.R. 533; Gopal Mundul v. Nobo Kishen 5 W.R. Act X Rulings 83 and Ram Lall Chuckerbutty v. Tara Soondari 8 W.R. 280 were suits for enhancement of rent in which the landlord relied upon entries in collection papers to negative the presumption of fixity of rent in favour of the tenant. The case of Shib Persad Doobey v. Promothonath Ghose 10 W.R. 193 is of no assistance in the solution of the question raised before us, because there the only question was, whether, if the tenant called for the production of the papers of the landlord, he was not bound by all the entries found therein; and it was ruled that he was so bound, as was subsequently laid down by the Judicial Committee in the case of Rajeswari Kuar v. Bal Krishan 9 A. 713; 14 I.A. 142. The question of admissibility was raised, after the Indian Evidence Act of 1872 had come into force, in the cases of Bhugwan Butt Jha v. Sheo Mungul Singh 22 W.R. 256; Belaet Khan v. Rash Beharee Mookerjee 22 W.B. 549; Surnomoyi v. Johur Mahomed Nashyo 10 C.L.R. 545; Roushan Bibee v. Hurray Kristo Nath 8 C. 926; Akhil Chandra Chowdhry v. Nayu 10 C. 248 and Mohomad Mahmood v. Safar Ali 11 C. 407. In the case of Belaet Khan v. Rash Beharee Mookarjee 22 W.B. 549 Mr. Justice Markby held that Section 31 of the Indian Evidence Act had substantially altered the law as contained in Section 43 of Act II of 1855, and that in a suit for enhancement of rent, if the landlord relied upon the entries in the collection papers to negative the presumption of fixity of rent in favour of the defendant, no corroboration was needed, inasmuch as it could not be maintained that the statements were used as evidence to charge any person with liability. This view, however, was not accepted by Mr. Justice Prinsep and Mr. Justice Bose in the case of Surnomoyi v. Johur Mahomed Nashya 10 C.L.R. 545 where, as we find from an examination of the original record, enhancement was sought by the landlord and was resisted by the tenant on the ground that he held at a fixed-rate of rant. We further find that in the cases of Roushan Bibee v. Hurray Kristo Nath 8 C. 926; Akhil Chandra Chowdhry v. Nayu 10 C. 248 and Mahomed Mahmood v. Saffar Ali 11 C. 407 which arose out of suits for recovery of rent, Sir Richard Garth treated the collection papers as inadmissible under Section 34 of the Indian Evidence Act. The only case, therefore, decided after the Indian Evidence Act had coma into operation, which supports the contention of the respondent, is that of Baleat Khan v. Rash Beharee Mookerjee 22 W.B. 549. We are not prepared to follow that decision in view of the dissent expressed in the case of Surnonoyi v. Johur Mahomed Nashyo 10 C.L.R. 545 which has been treated as good law daring a period of thirty years. If the question were res Integra, it might, no doubt, have been contended with some force that the statements in the collection papers produced by the landlord are not sought to be used by him as evidence to charge the defendants with liability. At the same time, the view adopted by Mr. Justice Prinsep and Mr. Justice Bose may clearly be defended upon a liberal construction of Section 34. To take one illustration, in a suit for rent, the matter for inquiry is, whether the rent is' payable at the sum named by the landlord or at the figure alleged by the tenant. An entry in the collection papers that the rent, on a previous occasion, bad been realized at a certain rate, does not by itself impose any liability upon the tenant; but taken along with the presumption mentioned in Section 51 of the Bengal Tenancy Act, it leads to the result that the landlord is able to fix a liability upon the defendant. In the same way, in a suit for enhancement of rent, the matter for inquiry is, whether, as alleged by the landlord, the tenancy is held at a variable rent, or, whether as asserted by the tenant, the land is held at a rent or rate of rent fixed in perpetuity. The entries in the collection papers of the landlord, which go to prove that the rent has varied from year to year, although they do not directly impose any liability on the defendant, yet ultimately lead to that result. From this point of view, the opinion expressed by Mr. Justice Prinsep and Mr. Justice Bose in the case of Surnomoyi v. Johur Mahomed Nashyo 10 C.L.R. 545 may be supported, and we are not prepared at this distance of time to dissent from that view. At the same time, we are of opinion that there may be cases which show that the law as embodied in Section 34 of the Indian Evidence Act is not identical with the law as laid down in Section 42 of Act II of 1855. To take a concrete illustration: suppose a question arises, whether a parson was on a particular date present in Calcutta. Evidence is adduced to show that in a book of account regularly kept in the course of business, there is an entry that he received a sum of money from X in Calcutta on that date. That entry would be admissible under the first part of Section 34, and, apparently, no corroboration would be needed, as no liability is sought to be imposed upon him by virtue of that entry. But an entry of this character would not have been admissible under the terms of Section 43 of Act II of 1855. We, therefore, hold that, in th case before us, the jamabandi papers wart improperly received in evidence.
5. The question next arises, what course should be adopted in this view of the matter? On behalf of the appellants, it has been strenuously contended that the jamabandi papers should be excluded and that the claim for assessment should be dismissed. After anxious consideration, we have arrived at the conclusion that this course should not be pursued. The objection urged in this Court does not appear to have been taken in this precise form in the Court of first instance; and it has been forcibly argued on behalf of the respondent that if the objection had been taken, evidence of the description contemplated by Section 34 might have been adduced to make the entries admissible under Section 32 of the Indian Evidence Act. It was pointed out in the case of Rampyarabai v. Bilaji Shridhar 28 B. 294 : 6 Bom.. L.R. 50 that if a statement is admissible under Section 32, corroboration would not be needed in terms of Section 34. This view was accepted by this Court in the case of Dukka Mandal v. Grant 16 C.L.J. 24 : 16 Ind. Cas. 467 and is in accordance with the opinion expressed by Mr. Justice Norman so far back as 1857 in the case of Kheerononee Dassee v. Beejoy Gobind Bural 7 W.R. 533.
6. The result is that this appeal is allowed, the decree of the Special Judge set aside, and the case remitted to the Court of first instance in order that the question of the fixity of rent of the defendants may be investigated again. The parties will be at liberty to adduce fresh evidence. The appellants are entitled to their costs in this Court. We assess the hearing fee at one gold mohur. This order will apply only to the cases of tenants who had produced rent receipts to prove payment of rent at a uniform rate for 20 years. In so far as the other tenants are concerned, the appeal must be dismissed with costs.
7. This judgment will govern the Appeals Nos. 1081, 1082 and 1083 of 1909 and similar orders will be drawn up therein. Appeal No. 1080 of 1909 is dismissed with costs. We assess the hearing fee at one gold mohnr.