R.C. Mitter, J.
1. This appeal is in a suit instituted by the plaintiffs for a declaration that the defendants are occupancy ryots and not ryots at fixed rent as recorded in the khatian prepared and finally published under Chapter X of the Bengal Tenancy Act. The khatian has recorded the defendants as ryots at fixed rent holding under the plaintiffs at the rent of Rs. 14-6 per year. The plaintiffs succeeded before the Munsif but the Subordinate Judge has dismissed their suit.
2. It appears that before the Record of Rights was published, the plaintiffs instituted a suit (No. 988 of 1915), against the defendants for recovery of arrears of rent which they claimed at the rate of Rs. 14-6 per year. The defendants disputed the rate of rent which they alleged was Rs. 14-1 per year. In Paragraph 6 of the written statement filed in that suit they stated that they were holding the lands on the terms of an unregistered kayemi mukarari patta executed by the predecessors of the plaintiffs in favour of their predecessors on Baisakh 2, 1238, B.S. which had fixed the rent at Rs. 14-1 in perpetuity. To decide the question as to the rate of rent payable, the question of the genuineness of the said patta had to be gone into. The Court found that it could not place any reliance upon the unregistered patta. The plaintiffs accordingly got a decree at the rate Rs. 14-6 yer year and the question as to the status of the tenant was left open as it was not necessary in that suit to decide it. Thereafter settlement proceedings were started. It appears that in the draft record the defendants had been shown as occupancy ryots holding at a rental of Rs. 14-6 per year. The defendants filed an objection before the Assistant Settlement Officer and urged that as they had been paying the same rent (namely Rs. 14-6) for the last twenty years, the presumption under Section 50 of the Bengal Tenancy Act was applicable and they ought to be recorded as ryots at fixed rent. This objection was given effect to and the Record of Rights which was finally published on November 23, 1923, showed the defendants as ryots at fixed rent.
3. Before me Dr. Mukherjee has urged two points namely, (1) the admission in Paragraph 6 of the written statement filed by the defendants in Suit No. 988 of 1915, rebuts the presumption under Section 50 and as it is admitted that the entry in the Record of Rights was made only on the basis of the said presumption, there is no foundation for the said entry, and
(2) That when a tenant bases his case of having the status of a tenant at fixed rent on a patta, there is no scope for the application of Section 50 of the Bengal Tenancy Act, when that patta is found to be a false one. He says that after having obtained an adverse decision on the patta the tenant cannot be allowed to fall back upon the presumption under Section 50 of the Bengal Tenancy Act.
4. The Record of Rights being in favour of the defendants, the onus is on the plaintiffs to prove that it is wrong. As the entry in the Record of Rights was admittedly based on the fact of twenty years payment of rent at the same rate I would assume that the presumption of correctness attaching to the entry in the khatian can be rebutted by showing that there can be no scope for the application of the presumption under Section 50 to the facts of the case. The presumption raised under Section 50 can be rebutted either by showing that the tenancy was created after the Permanent Settlement of 1793 or by showing variation of rent.
5. Dr. Mukherjee argues that when the tenant admitted in his written statement in Suit No. 988 of 1915 the creation of the tenancy in 1238 (1831)by the patta of Baisakh 2, the presumption under Section 50 is rebutted. I am afraid I cannot give effect to this contention. In the first place the statement has not been made in this suit but in the suit of 1915. The plaintiffs there challenged the said statement as false and on the basis of its falsity they succeeded fully in that suit. Secondly, in Paragraph 6 of the said written admission there is no statement that the tenancy had been created by the patta of Baisakh 2, 1238. It merely stated that at the date of the rent suit the said patta was holding the field. Thirdly, if the plaintiffs seek to rely upon the admission of the defendants, they must take the whole of Paragraph 6 of the said written statement. They cannot be allowed to dissect it and use a part, namely, that the tenancy was created by a patta of Baisakh 2, 1838,and reject the rest, that the tenancy so created was at a fixed rent. For these reasons I am unable to give effect to the first contention of Dr. Mukherjee.
6. In support of his second contention Dr. Mukherjee cites before me some cases decided under Act X of 1859, Section 4 whereof is in pari materia with Section 50 of the Bengal Tenancy Act. The cases cited are Petumber Shaha v. Jebun Singh 2 W.R. (Act X) 6, Lachmeepersad v. Ramgolam Singh 2 W.R. (Act X) 30, Forbes v. Nund Coomar Mundal 2 W.R. (Act X) 35, and Sheikh Jainoodeen v. Poorno Chunder Roy 8 W.R. 129. The last mentioned case has no bearing on the point. It merely states the well established proposition that a party who had made an admission has to explain it, otherwise it would be taken almost as conclusive against him. In that case in a suit for enhancement of rent the tenant relied upon the presumption of Section 4 of Act X of 1859. A plaint of another suit filed by him was put in or rather sent for by the High Court, wherein it was stated simpliciter that his tenancy commenced by a patta of the year 1239. The tenant contended before the High Court that the said patta was only a confirmatory one, the tenancy having in fact originated before 1793 but the High Court held that it was for him to prove that it was so. In the first two cases cited by Dr. Mukherjee it appears that the only defence taken in the written statement was that the tenancies originated with certain mukurari pattas granted after 1793. The tenants failed to prove the pattas. These two cases can be explained on the principle that the only defence being a defence which rested the creation of tenancy after 1793 the tenant would not be allowed to rely at a late stage on the ground which would be inconsistent with the defence pleaded, for if a tenant had then been allowed to fall back upon Section 4, Act X, he would have been allowed virtually to make a case that his tenancy had existed from before 1793, whereas his defence was that it was created after 1793. The case of Forbes v. Nund Coomar Mundal 2 W.R. (Act X) 35, however, requires some consideration. There the tenant had in a suit for enhancement pleaded what was really alternative defences. He stated that by reason of his paying rent at a uniform rent (rate?) for more than twenty years he was entitled to the presumption that rent was being paid at the same rate from before the Permanent Settlement and stated further that the said fact was confirmed by a patta of a date anterior to the Permanent Settlement. The said patta was found to be a fabricated one. Kemp and Glover, J.J., held that under the circumstances the tenant 'was not entitled to the benefit of the presumption under Section 4, nor can be permitted to benefit by his own fraud'. The said decision, however, must be taken to be overruled by the Full Bench in the case of Greesh Chandra Basu v. Kalli Kristo Haldar 6 W.R. (Act X) 57 : B.L.R. Sup. Vol. 538(F.B.). It would be indefensible on principle to hold that a defendant would be precluded from urging an alternative defence simply because he could not support his other defence by credible evidence or attempted to support it by false evidence. It would be still more indefensible on principle to hold that a person would be precluded from urging any defence, or that it would absolve the plaintiff from proving his case, simply because in an earlier suit of a different nature relating to the same holding the defence had been rejected on the ground that it was attempted to be supported by false evidence or fabricated documents. I accordingly hold that there is no substance in any of the contentions urged on behalf of the appellants and the appeal must be dismissed.
7. The appeal is accordingly dismissed with costs.