Second Appeals Nos. 1244,1523 to 1529 of 1916.
1. These appeals arise out of suits for recovery of rent and also for enhancement of rent on the ground of a rise in the prices of staple food crops.
2. The defence was that the rent was not liable to enhancement and the defendants relied upon the presumption under Section 50 of the Bengal Tenancy Act.
3. The learned Subordinate Judge says: ' The defendants have not exhibited their dakhilas. They, however, rely upon the plaintiffs' papers to show that their jamas have not been altered for the last 20 years. But I do not think that the presumption under Section 50 of the Bengal Tenancy Act can help the case for the defense in any way, for the presumption has been rebutted by the plaintiffs. The talab baki of 1281 goes to show that the jamas originally payable by the defendants were altered in that year.'
4. It is contended before us that talab baki papers are merely corroborative and not independent evidence. No doubt, under Section 34 of the Evidence Act such papers are not sufficient evidence to charge any person with liability. There is divergence of judicial opinion, however, upon the question whether the papers sought to be used for rebutting the presumption under Section 50 (as in the present case) can be said to be used for the purpose of charging a person with liability. It has been held in some oases that they are not. See the oases of Belaet Khan v. Bash Beharee Mookerjee 22 W.R. 549, Dukha Mandal v. Grant 16 Ind. Cas. 467 : 16 C.L.J. 24. A contrary view has been taken in other oases: see Surnomoyi v. Johur Mahomed Nasto 10 C.L.R. 545, and also in the latest case on the point, namely, the case of Aktowli v. Tarak Nath Ghose 17 Ind. Cas. 266 : 16 C.L.J. 328 : 17 C.W.N. 774. The plaintiffs have proved that the papers of 1281 were prepared by same agent of theirs and that they were in the handwriting, and bear the signature, of the said agent; bat there is no evidence to show whether the person is alive or dead. If the person is dead, the papers may be evidence under Section 32, Clause (2), as being the statements of a deceased parson made in the ordinary course of business. The defendants did not take any objection to the admissibility of these papers in the Courts below, and in fact they relied upon these pipers for a period of 20 years immediately preceding the suit. They now take objection to the admissibility of the papers of 1281, which show that there was variation of the rent in that year. In order, however, that the papers might be evidence under Section 32 (2), it was for the plaintiffs to show that the parson making the statement was dead and that the entries were made by him in the ordinary course of business before the collection papers could be admitted. Under these circumstances, we think that there should be an enquiry in this matter and that the plaintiffs should be given an opportunity of adducing evidence on this point. If the papers are admissible in evidence under Section 32, it would be unnecessary to consider whether they are admissible under Section 34.
5. We accordingly direst the Court below to take any evidence which the plaintiff's may adduce on this point and send up its finding on the point to this Court within one month of the arrival of this order in the Court below. The question whether those papers are admissible in evidence under Section 34 of the Evidence Act (if necessary to be considered) and the other question, namely as to the right of enhancement under Section 30 and the date from which the enhancement is to take effect, will be considered after the finding on the above point is received in this Court.
Second Appeals Nos. 1209, 1486 to 1491 of 1916.
6. These appeals arise out of the same suits, and the main questions in these oases are, first, whether the lower Appellate Court has misunderstood the provisions of Sub-section (6) of Section 52 of the Bengal Tenancy Act and, secondly, whether that Court has erred in not taking into consideration matters which should have been considered under this section in determining the question whether the plaintiffs are entitled to additional rent in respect of additional area.
7. Section 52, Sub-section (6), runs as follows: 'When in a suit under this section the landlord or tenant proves that, at the time the measurement on which the claim is based was made, there existed, in respect of the estate or permanent tenure or part thereof in which the tenure or holding is situate, a practice of settlement being made after measurement of the land assessed with rent, it may be presumed that the area of the tenure or holding specified in any potta or kabuliyat, or (where there is an entry of area in counterfoil receipt corresponding to the entry in the rent roll) in any rent roll relating to it, has been entered in such potta, kabuliyat, or rent roll after measurement.'
8. The learned Subordinate Judge was of opinion that the practice of recent measurement would not help the plaintiff. The learned Pleader for the appellant contends that the words ' at the time the measurement on which the claim is based was made' in Sub-section (6) of Section 52 refer to the measurement upon which the excess area is found out before the institution of the suit, and that it does not refer to the measurement made at the time of the original settlement. We are unable, ho waver, to hold that this is what is meant by the section. The landlord has to prove under the section that there has been an increase in the area for which rent was previously paid, and in order to do so, it has been held that he must show that the land was measured at the time of the inception of the tenancy by a particular standard of measurement, and that there has been an increase in the area on measurement by the same standard. The section merely provides that if the landlord proves that at the time the measurement on which the claim is based was made there existed a practice of settlement being made after measurement of the land assessed with rent, it may be presumed that the area specified in the potta, kabuliyat or counterfoil rent receipt was entered in it after measurement. So that if the landlord can prove such a prectice, it will be presumed that the area entered in the potta, kabuliyat or rent receipt was entered after measurement; though he is not able to prove that as a matter of fact the lands in the particular case were settled after measurement; see the case of Uma Singh v. Rai Tarini Prosad 25 Iad. Cas. 532 : 19 C.L.J. 451 at p. 452.
9. If the contention of the appellant were accepted, it would follow that the landlord on showing that there is a resent practice of settlement of land after measurement (which may be started by the landlord a few years before the suit) would be entitled to ask the Court to presume that there has been such a practice 50 or 60 years before the institution of the suit when the tenancy was created. We do cot think that that is the meaning of the sub-section, although the language used makes it some-what ambiguous. We are accordingly of opinion that so far as the contention is based upon sub section(6) of Section 52, it must be over-ruled.
10. The learned Subordinate Judge, however, does not deal with the facts of the case bearing on the question of measurement. In the first place, he says that the plaintiffs have given evidence as to the recent practice prevailing in the Mouzah about the settlement of lands. It has been pointed out to us that the plaintiffs adduced evidence to show that lands had been settled, after measurement from the year 1842 and there were produced papers of 1258 and 1280 which are referred to in the judgment of the Munsif. Besides there appears to have been a survey and settlement of lands in the year 1276. The learned Munsif appears to have considered the entire evidence bearing upon the question. The lower Appellate Court has not come to any finding upon the facts and has practically proceeded upon the proposition of law mentioned in his judgment.
11. We think, therefore, that the case should go back to the lower Appellate Court in order that the question may be considered and findings arrived at upon the evidence on the record, and the appeal disposed of according to law.
12. Costs to abide the result.
13. This judgment will govern Second Appeals Nos. 666 and 890 of 1916, the question in these oases being similar,
Second Appeal No, 1214 of 1916.
14. The respondent has not appeared in this case. This appeal arises out of a suit for enhancement of rent and also for additional rent for additional area.
15. The holding originally belonged to the defendant's father. There was a subsequent division of the holding into three parts. The learned Subordinate Judge says: 'it does not appear when the holding in question was created. There is nothing to show that the settlement with the defendants was made on the basis of any measurement or that they have been holding any land beyond the boundaries of the lands let out to them. In short the plaintiffs have failed to prove that the defendants are in possession of any excess land.' It appears, however, from the Munsif's judgment that the quantity of land and the amount of rent of the original holding have varied from time to time, and that being so, the incidents of the original tenancy would govern the incidents of the three holdings in the possession of the defendants, into which the original holding was sub divided. In these circumstances we do not see any reason why the plaintiffs should not be entitled to additional rent for additional area.
16. The result is that so far as this case is concerned, the decree of the lower Appellate Court is set aside and that of the Court of first instance restored.
17. We make no order as to costs of this Court, but the plaintiffs will be entitled to costs of the Court of Appeal below.
18. Appeals Nos. 1244, 1523 to 1529, 1209, 1486 to 1491 of 1916 remanded.