1. This is an appeal by the tenants in a proceeding instituted by their landlords under Section 105, Bengal Tenancy Act, for assessment of fair and equitable rents in respect of the lands in their possession. The question in controversy is as to the status of the tenants. They were recorded as settled raiyats in the finally published Record of Rights. The landlords thereupon instituted the present suit for settlement of fair and equitable rent. The tenants contended that they were raiyats at fixed rent. In order to establish their allegation, they relied upon the presumption embodied in Section 50, Sub-section (2), of the Bengal Tenancy Act, which provides that if it is proved in any proceeding under the Act that either a tenure holder or raiyat and his predecessors-in-interest have held at a rent or rate of rent which has not been changed during the 20 years immediately before the institution of the proceedings, 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. On establishment of this presumption, Sub-section (1), the raiyat becomes entitled under Section 50(1) to protection from enhancement of rent. The tenents produced rent receipts from 1885 to 1895 and from 1904 to 1911 in order to show that they held the tenancy at the uniform of rent of Rs. 13-13 1 1/2gds. The Settlement Officer held that as no receipts were produced for the years 1896 to 1903 the tenants were not entitled to the benefit of the presumption. In his opinion, it is necessary to produce rent receipts for 20 consecutive years antecedent to the suit, to entitle the tenant to the benefit of the presumption. On appeal the Special Judge has adopted the same view of the law. He has, however, stated in his judgment that the receipt produced for the year 1890 was suspicious and he has added that the genuineness of the receipt from 1885 to 1889 was doubtful. The reason assigned by the Special Judge for his conclusion that the receipt produced for the year 1890 was suspicious has been criticised in, this Court, and it has been pointed out that, although the receipt bears on the face of it the figures '1269' instead of '1297' in writing, we find words which leave no doubt that the receipts were genuine. We are, however, not directly concerned with the reasons assigned by the Special Judge for his conclusion upon a question of fact. The fact remains that even if we accept the view that the receipt for 1890 was suspicious and that the receipts for 1885 to 1889 were of doubtful genuineness, still we have receipts from 1.904 to 1911. A period of 20 years intervenes between the earliest and the latest of these receipts. Consequently, the question cannot be avoided whether it is necessary for a tenant to produce receipts for a continuous series of 20 years to entitle him to the benefit of the presumption embodied in Section 50. There can be no doubt that the view taken by the Courts below upon this matter is erroneous.
2. In the case of Kattyani Debea v. Soonduree Debea 2 W.R. Act X. Rul. 60 it was laid down as follows: 'It is not absolutely necessary that dakhilas should be for 20 consecutive years before the date of suit, for it might frequently happen that parties, with every right to the presumption, might lose one or two dakhilas here and there, during such a long period, and it would be manifestly unjust to deprive them of the benefit allowed by law when no suspicion could arise of misfeasance, merely because one or two of these receipts has been mislaid or lost. In the present case, the missing dakhilas are for years about the middle of the period, and we do not think that their nonappearance should defeat the special appellant's claim to the presumption.' The same view was affirmed in Elahee Bukhsh v. Roopun Telee 7 W.R. 284 where Mr. Justice Pundit said as follows: 'When receipts are filed, not for the entire period of 20 years preceding suit, but some are wanting here, and some there in that interval, still uniform payment may be proved otherwise for the wanting years by other proof, and from surrounding circumstances.' This view is undoubtedly correct, upon a true interpretation of the language used by the Legislature in Section 50. What was to be established is, not that rent has been actually paid at uniform rate during 20 years, but that the tenant has held at a rent or rate of rent which has not been changed during 20 years. Such holding may be established, even if it is not proved that rent has actually been paid during a portion of the 2 J years. This is precisely the interpretation adopted by this Court in Mohini Kanta Saha v. Preo Nath Neogy 7 W.R. 284. To return to the concrete facts of this case, assume it to be established that the rent has been paid at the rate alleged by the tenants during the year 1891 to 1895 as also during the years 1904 to 1911. It is theoretically possible that in the interval there may have been an enhancement of the rent followed by a reduction, so as to make the rent payable in 1904 identical with that paid in 1895. But it is really for the Court of fact to decide, from all the circumstances of the. case, whether the principle of continuity or the principle of discontinuity should be applied. In this connection, it must be observed that it is open to the landlord to rebut such evidence as maybe produced by the tenants, by the production of counter-foils of receipts and collection papers. It is clear that the case has not been considered from the right point of view by either of the Courts below.
3. The result is that this appeal is allowed, the decree of the lower Appellalate Court's set aside and the case sent back to that Court to be re-considered. We leave it to the Special Judge to decide whether the parties should be allowed to adduce additional evidence. Costs will abide the result. We assess the hearing fee at one gold mohur.