Asutosh Mookerjee, J.
1. This is an appeal under Clause 15 of the Letters Patent from a judgment of this Court in an appeal preferred under Section 109A of the Bengal Tenancy Art, in the course of a proceeding under Section 103.
2. It appears that in 1915, a Record of Rights was prepared which contained an entry to the effect that the defendants respondents were occupancy raiyats. The landlords appellants thereupon instituted the present proceeding for enhancement of rent on the ground that the prevailing rate was higher than that paid by the tenants. The tenants resisted the claim on the ground that they held at a rent or rate of rent which was fixed in perpetuity and that their rent was consequently not liable to enhancement, The Settlement Officer gave effect to the contention of the landlord and allowed the claim for enhancement. Upon appeal, the Special Judge upheld the defence and dismissed the claim for enhancement. On appeal to this Court. Mr. Justice Teunon held that the judgment of the Special Judge was not liable to be challenged in second appeal as erroneous in law. Mr. Justice Huda, on the other hand, came to the conclusion that the view of the Special Judge was based upon an erroneous construction of Section 50 of the Bengal Tenancy Act. The result was that the decision of the Special Judge stood affirmed. On the present appeal, it has been contended on behalf of the landlords that the decision of Mr. Justice Teunon in affirmance of the decision of the Special Judge is based upon an erroneous interpretation of Sub-section (2) of Section 50.
3. Sub-section (2) of Section 50 provides that where a raiyat and his predecessors-in-interest have held at a rent or rate of rent which has not been changed from the time of the Permanent Settlement, the rent or rate of rent shall not be liable to be enhanced except on the ground of an alteration in the area of the tenancy or holding. In the present case, there is no direct evidence that the raiyats held at a rent or rate of rent which had not been changed from the time of the Permanent Settlement. They are consequently compelled to have recourse to the presumption specified in Sub-section (2) of Section 50, which provides as follows: 'If it is proved in any suit or other proceeding under this Act that a raiyat and his predecessors-in-interest have held at a rent or rate of rant which has not been changed during the twenty years immediately before the institution of the suit or proceeding, it shall be presumed, until the contrary is shown, that they have held at that rent or rate of rent from the time of the Permanent Settlement.' Consequently, the raiyats have to establish in this case that they and their predecessors-in-interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the institution of the suit or proceeding. The landlords have argued that the raiyats have failed to establish the affirmative of this proposition, because from that it is conceded that no rent has in fact been paid by them to their landlords since 1893, in other words, during the seventeen years immediately preceding the institution of the suit. The substance of the contention of the landlords is that the tenant is entitled to the benefit of the presumption under Sub-section (2) of Section 5(sic) only if he proves actual payment at an unvaried rate, if not in each of the twenty years preceding the suit, at least in so many of them as to lead to the inference that there has been no change in the rent paid throughout the period of twenty years. We are of opinion that this contention cannot be accepted in view of the plain language of Sub-section (2) of Section 50. The tenant is not required to establish actual payment of rent during the twenty years at a uniform late; he has to establish that he and his predecessors-in-interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the suit or proceeding. This involves a real distinction; for a person may hold as a tenant, even though he does not actually pay the rent agreed upon to his landlord. As was pointed out by Mr. Justice Dwarkanath Mitter in Ahmed Ali v. Golam Guffoor 11 W.R. 432 : 3 B.L.R. App. 40, there may be cases in which a raiyat might not have paid his rents for many years prior to the institution of the suit for enhancement but if there has been no charge in the rent payable by him be is not to be deprived of the presumption which the law has expressly laid down for his benefit; the payment at a uniform rate is one mode of showing that the tenure was held at a uniform rate, but what is only a particular mode of proceeding to the solution of a question ought not to be confounded with the question itself. It has not been, and, in our opinion, cannot be, maintained that the omission to pay on behalf of the tenant or refusal to receive rent on the part of the landlord causes a cessation of the tenancy. The present proceeding is, indeed, based on the assumption that the defendants hold as tenants and that their rent is liable to be enhanced. The question, consequently, arises, what is the rent or rate of rent at which they have held during the twenty years immediately before the institution of the suit or proceeding. There is evidence to show that rent was paid at a certain rate in 1897. There is farther evidence to show that the rent had been paid at the same rate for very many years earlier, and, it has been stated to us that, in one case the oldest receipt produced dates back to 1845. There is thus evidence which justifies the finding of the Special Judge that rent was paid at a certain rate which was uniform from 1845 to 1897. There has been no actual payment of rent since then. Does this justify the inference that there has been a change in the rent or rate of rent which was in operation in 1897? The answer manifestly must be in the negative. The rent could have been altered either by mutual agreement or by a decree of Court. There was an attempt on the part of the landlords to enhance the rent, but the tenants did not accede to the demand, Consequently, there is no room for the hyphothesis that the rent might have been altered by agreement of parties. Admittedly, there has been no proceeding in Court for alteration of the rent before the date of the institution of the present suit. We must, consequently, hold that the lent which was in operation in 1897 was in operation from 1897 up to 1915: in other words, that the rent at which the raiyats have held during the twenty years immediately before the institution of the suit or proceeding has been at a uniform rate. This attracts the operation of the presumption mentioned in Sub-section (2) of Section 50. The view we take is supported by the decisions in Ahmed Ali v. Golan Guffoor 11 W.R. 432 : 3 B.L.R. App. 40, Sham Churn Koondoo v. Dwarkanath Kubeera 19 W.R. 100, Kshirod Gobinda Choudhury v. Rajendra Narayan Shaha 38 Ind. Cas. 94 : 27 C.L.J. 281 and Grant v. Har Sahay Singh 20 Ind. Cas. 53 : 18 C.L.J. 76 : 19 C.W. N.117 although there may be inaccurate expression in Rajnarain Roy Chowdhry v. Mrs. Olivia Atkins 1 W.R. 45, Mahnooda Bebee v. Hareedhun Khuleefa 5 W.R. Act X Rul., 12, Prem Sahoo v. Shaikh Nyamut Ali 6 W. R., Act X Rul., 89, Sham Lal Ghose v. Boistab Churn Muzoomdar 7 W.R. 407 and Ramjadoo Gangoly v. Luckhee Narain Mundul 8 W.R. 488 which may at first sight land apparent support to a contrary position. Oar conclusion is, that the view taken by Mr. Justice Teunon is correct, and that the appeal must consequently be dismissed with costs.
4. The judgment will govern the other appeals Letters Patent Appeals Nos. 55, 56 and 57 of 1920.
5. I agree.
6. I agree.