1. This appeal has arisen out of a suit under Section 106 of the Bengal Tenancy Act at the instance of the landlords for correction of certain entries in the Record of Rights of village Pechandary, the Survey of which has been made and and the Record of Rights in respect thereof has been prepared under the provisions of Chapter X of the Bengal Tenancy Act. The plaintiffs landlords alleged that the rent of the tenure in suit was enhancible, the tenants in their defence however, urged that having regard to the entry under Section 103B of the Bengal Tenancy Act and to the fact that rent has remained unvaried for a period of over 20 years the claim of the plaintiffs landlords was not entertainable. The Assistant Settlement Officer of Mymensingh before whom this matter came in the first instance was of opinion that although the entry in the Record of Rights was in favour of the defendants, stilly having regard to the Quinquennial Register of 1205 B.S. prepared under the provisions of Regulation XLVIII of 1793 and to the entries in certain Road Cess Returns filed by the plaintiffs landlords, the claim of the latter was sustainable and he accordingly decreed the suit with costs, declaring that the rent of the tenure was liable to enhancement. He further ordered that the necessary correction in the Record of Rights should be made as prayed for by the plaintiffs. There was an appeal to the Special Judge of Mymensingh at the instance of the defendants tenants. The learned Judge, after taking into consideration the documentary evidence in the case, held that there was no substance in the appeal and he accordingly dismissed the same.
2. The two pieces of documentary evidence relied upon by the learned Judge are (1) the Quinquennial Register referred to above which showed that at the time when the Register was prepared the rent of the tenure in question was 75 sicca rupees which was equivalent to Rs. 80 of the East Indian Company (the rent according to the defendants having been a sum of Rs. 89-11-8 for a series of years) and (11) the Road Cess Return filed by the landlords in accordance with the provisions of the Cess Act. The learned Judge, after discussing the weight to be attached to the entries in the Road Cess Return, held that there was sufficient evidence on behalf of the landlords to meet the defendants tenants' case, although he was of opinion that the Register standing by itself was far from being conclusive. It is to be observed however that the Road Cess Returns in question were tendred as exhibits in this case not on behalf of the plaintiffs landlords but on behalf of the defendants tenants. Now, so far as the Road Cess Returns are concerned, it is quite clear, having regard to the provisions of the Cess Act, that they were not admissible in evidence at all and, therefore, so far as the defendants' case is concerned, we must leave out of consideration, the Road Cess Returns. Therefore, there remained the Quinquennial Register which was tendered as an exhibit on behalf of the plaintiffs landlords. Now, to start with, there was a presumption in favour of the defendants from an entry under Section 103-B of the Bengal Tenancy Act. Therefore, the onus of proof rested entirely on the plaintiffs landlords to negative the effect of the said presumption. The question then arises as to whether the plaintiffs landlords have discharged that onus; It is unnecessary to go into the question as to whether the Quinquennial Register was admissible in evidence or not. Assuming, however, that the entry in the Quinquennial Register was admissible in evidence, we are of opinion that the said entry by itself was not sufficient to negative the presumption Under Section 103-B of the Bengal Tenancy Act, Indeed, it his been recognized by the learned Judge himself that that piece of evidence is far from being conclusive. We are satisfied, however, from the judgment of the learned Judge taken as a whole, that the onus was wrongly placed on the defendants and in that view of the matter he came to the conclusion that the plaintiffs landlords had proved their claim. We think, however, that the entry in the Quinquennial Register is not sufficient to prove the plaintiffs' case. In this view of the matter, we must allow the appeal and direct that the appeal be decreed and the suit dismissed with costs in all Courts.