1. These two appeals arise out of applications by the respondent under Section 105, Bengal Tenancy Act, for the settlement of a fair and equitable rent in respect of tenures held by the appellants. These tenures have been noted in the Record-of-Rights as permanent tenures with rent fixed in perpetuity. The object of the applications is to establish that the entry in the Record-of-Rights is incorrect and that the rents of the tenures are actually enhancible. The Assistant Settlement Officer tried the suits and held that on the evidence adduced by the plaintiffs they failed to rebut the presumption in favour of the correctness of the Record-of-Rights and. dismissed the suits. The learned Special Judge, on appeal by the plaintiffs reversed that decision and holding that the rents of the tenures are enhancible remanded the cases to the first Court for determination of other issues.
2. The tenant defendants have appealed and it is urged on their behalf that the Special Judge has erred in admitting in evidence or at any rate in attaching undue weight to some documents on which he has relied to find for the respondents.
3. It is admitted that the appellants have been paying rents at a uniform rate for long over 20 years giving rise to a presumption under Section 50 (2), Bengal Tenancy Act, that the tenures existed from the time of the Permanent Settlement. In order to rebut the presumption the respondent produced three documents :-(1) Quinquennial Register of 1795 (1202); (2) Haquiyat or Taidad papers of 1207 and 1212; and (3) Sarhadbandi papers of 1228. Of these the Quinquennial Register is the most important and has been held by the Judge to be sufficient to rebut the presumption under Section 50, Bengal Tenancy Act.
4. The Quinquennial Register is a register kept by the Collector under Regulation 48 of 1793. The copy produced contains a list of dependent taluqs in the Tauzi to which the tenures in suit belong. These tenures are not mentioned in that list and hence it is argued that they did not exist at the time of the Permanent Settlement. The learned Judge has accepted this view. He argues that the Board of Revenue must have, under the power conferred upon it by the Regulation, framed rules under which all the dependent taluqs were entered in the register with their rent and area, though these rules are not obtainable. It was, therefore, the duty of the officers who prepared these registers to include such dependent taluqs. He puts his conclusion in these words: ' The fact that any particular taluq is not in such registers seems to me, therefore, very strong proof that the taluq did not exist at the time that the registers were prepared.' The learned Judge adds: 'the evidence is not even in itself conclusive but is sufficient to rebut the presumption obtained by the defendant under Section 50, Bengal Tenancy Act.
5. It is contended, on the other hand, by the appellants that the object of the register kept under Regulation 48 of 1793 is to ascertain and record divisions and transfers of the zemindari and independent taluqs for purposes of public revenue. In recording the dependent taluq in the register the Collector was not acting in the discharge of a duty imposed on him by law and his act, therefore, is not the act of a public officer within the meaning of Section 35 of the Evidence Act. Besides the register was prepared from the papers supplied by the zamindar and so it cannot be used in his favour. It is also argued that the absence of an entry of a fact is no evidence of the non-existence of that fact. Bipradas Pal Choudhury v. Manorama Debi (1918) 45 Cal. 574, and Tarak Chandra Chakraburty v. Prosanna Kumar Saha : AIR1924Cal654 .
6. That the Quinquennial papers are admissible in evidence admits of no dispute: Oodoy Monee Debee v. Bishonoth 7 W.R. 14, Shoshi Bhooshu Bose v. Girish Chunder Mitter (1893) 20 Cal. 910 and Secretary of State v. Kalika Prosad Mookerjee (1912) 15 C.L.J. 281. But it has been held in Tarak Chandra Chakraburty v. Prosanna Kumar Saha : AIR1924Cal654 that their probative value is of the slightest character: see Wise v. Bhoobun Moyee Debia (1863-66) 10 M.I.A. 165. The question as to whether the Quinquennial Register has sufficient evidentiary value to rebut the presumption arising under Section 103, Bengal Tenancy Act, was recently considered in Promode Chandra v. Binayakdas Acharjya A.I.R. 1923 Cal. 611, and it was held that ii has no such value. If the question were res Integra we would have felt some hesitation in accepting this view without further consideration. We accordingly follow the above ruling and hold that the view taken by the learned Judge, that this piece of evidence is sufficient to rebut the presumption under Section 50, Bengal Tenancy Act, is erroneous. The learned Special Judge admits that the evidence afforded by the Register is not in itself conclusive and yet he holds that it is sufficient to rebut the presumption.
7. The Haquiyat papers being the papers submitted by the Zemindar have no value as evidence against the tenants.
8. The Sarhadbandi papers mention the appellants' taluqs but place them in one village whereas according to the appellants their tenures extend over three villages. The lower appellate Court will have to consider the effect of this piece of evidence and of any other evidence that may have been adduced on the present question after giving the Quinquennial Register its proper value according to the decisions of this Court referred to above. The cases will, therefore, be remitted to the lower appellate Court for re-consideration in the light of the above observations. Costs will abide the result which we assess at three gold mohurs.
9. S.A. No. 1388 of 1921.-This case which covers a tenure of 4-annas share in the lands dealt with in Appeals Nos. 1386 and 1387, was dismissed by the Assistant Settlement Officer on the ground that as one of the defendants was a minor and no guardian had been appointed, it could not proceed for defect of parties. In first appeal the learned Special Judge found that, as a matter of fact, an officer of the Court, Babu Benode Behary Das, had been appointed guardian of the minor and so there was no defect of parties, though it does not appear that the guardian took any steps after his appointment. He, therefore, remanded the case for hearing on the merits.
10. We can find no reason for disputing this order of the learned Special Judge. It is only argued that though appointed the guardian took no action. But this is no ground for putting the plaintiffs out of Court.
11. This appeal is, therefore, dismissed with costs one gold mohur.
12. S.A. No. 1435 of 1921.-In this case plaintiffs sued to enhance the rent of a tenure called Kalley Khan-Golap Khan. The defence set up was that the tenure had been held certainly since 1261 B.S. at a rental of Rs. 32, the area being 17 1/2 acres and the presumption was that it was a permanent tenure not liable to enhancement as also the Record-of-Rights showed.
13. The plaintiffs' case is that, as appears from the Quinquennial Register of 1795, there were originally two taluqs, one Kalley Khan and one Golap Khan, aggregating 10 acres at a rental of Rs. 10-8 each. A third tenure came into existence later named baduli sikdar, the rent and area of which is not stated but which is mentioned in the sarhadbandi papers of 1228 and the Isummavisi papers of 1226. The purchase-deed of 1261 too shows variation in the tenure as it recites that certain portion of the tenure was resumed by Government as an encroachment on a dried up bhil.
14. On this evidence the Assistant Settlement Officer found that the presumption that this tenure which is now 17 1/2 acres with a rent of Rs. 32 had existed in its present form back to the Permanent Settlement was rebutted and he granted an enhancement. In appeal the learned Special Judge upheld his decision though it appears that his remark that it was for the defendant to prove the quinquennial papers to be wrong is not a fortunate one.
15. In appeal it is argued that as the rent has not varied for about 70 years the presumption of fixity of rent back to the Permanent Settlement is not rebutted, specially as the Quinquennial Registers do not require to have entries of tenures and apart from it there is no evidence. Our remarks in Appeals Nos. 1386 and 1387 apply here also but in this case, though the plaintiffs' papers of 1228 cannot he used in their own favour, there is also the evidence of the sale-deed of 1261 and the Kanungo papers of 1226 to support the plaintiff's contention that the tenure in its present extent and rental does not go back to the Permanent Settlement and this evidence is sufficient to rebut the pre-sumption.
16. We, therefore, see no reason to set aside the findings of fact of the Courts below and dismiss the appeal with costs one gold mohur.