Thomas Richardson, J.
1. This is a second appeal preferred by the defendant No. 1. The suit was brought by the plaintiff to recover possession of certain plots of land to the extant of his share in a certain taluk and to the extent of the share to which he claimed title as purchaser in 1910 of the holding comprising those plots, at a sale in execution of a decree for arrears of rent obtained by him against the defendants Nos. 5 and 6 as raiyats.
2. The plaintiff's share in the taluk as talukdar and miras ijaradar amounts to 10 annas, 5 gandas. The share he claimed of the raiyati holding was 9 annas, 15 gandas. His claim is thus stated by the learned Munsif:--'The plaintiff prays for ejectment of the principal defendants from the 10 1/2 annas share, or, in the alternative, for ejectment from 1/2 anna share corresponding to his subsequently acquired share in the taluk, and for a declaration of his right to receive from the principal defendants the rents which defendants Nos. 5 and 6 agreed to pay in respect of 9 annas, share, and also prays for mesne profits.' The description of the half anna share as corresponding to a subsequently acquired share in the taluk is apparently due to a misapprehension. The half anna share is the difference between the talukdari share of 10 annas, 5 gandas and the raiyati share of 9 annas, 15 gavdas (see prayer Kha, of the plaint)
3. The original tenant of the holding was one Nasaruddi Akan, whose rights were purchased in 1904 by the defendant No. I's mother at a sale in execution of a money-decree against him.
4. The Trial Court dismissed the suit in to to.
5. In appeal the learned Subordinate Judge affirmed the dismissal as regards the share of the raiyati holding, in the view that the dealings of the plaintiff with the defendants Nos. 5 and 6 were collusive and not binding on the defendant No, 1. That finally disposes of the claim to the raiyati share with which we are no longer concerned.
6. As regards the talukdari share, the learned Subordinate Judge, differing from the Munsif, held that the plaintiff was entitled to actual possession of the half anna share referred to by the Munsif.
7. The question of the extent to which the plaintiff is entitled to actual possession, if at all, is the subject of Appeal No. 992, preferred by him.
8. The question whether he is entitled to actual possession of any part is the subject of the present Appeal (No. 1022) and turns on the transferability or otherwise of the holding in the hands of the original tenant Nasaruddi. The Munsif found that it was transferable, the Subordinate Judge that it was not transferable. At first sight, the question would seem to be one of fact but a point of some importance arises on the construction of Section 115 of the Bengal Tenancy Act.
9. The learned Subordinate Judge states his opinion as follows:--'The learned Munsif did not decide whether the tenancy was a tenure or a holding but found that it was transferable. He based his finding mainly on the Record of Rights which describe the tenancy as a Kaim Karsha permanent tenure, the various Instances of transfers from time to time, the presumption of fixity of rent to be derived from uniform payment of rent since 1282 B.S., and the recitals contained in a mortgage-bond executed in favour of the plaintiff's brother. A quite contrary state of things was found in several other documents with which Nasaruddi was concerned as also in a Road Cess Return but the learned Munsif did not consider them as leading to any definite conclusion. Though he considered it possible that the tenancy was originally a mere Karsha holding not transferable without a custom, he came to the conclusion that the assertion of a superior right and the fixity of rent for practical purposes due to uniform payment since 1282, invested with the incident of transferability. I regret I am unable to accept his conclusions. If a holding be a non-transferable occupancy tenancy in its origin, the mere omission on the part of the landlord to enhance the rent within a certain period may, in some cases, disentitle him to claim any enhancement at any subsequent time but that does not convert the ordinary status to that of a raiyat at fixed rates as defined in Section 50 of the Bengal Tenancy Act. The tenancy in question was never held at any rent fixed in perpetuity and consequently the incident of transferability does not attach to it. Moreover it is not known if, for practical purposes, even as observed by the Court below, the rent of Rs. 25 is not liable to be enhanced. If the landlords were now to institute an enhancement suit, the tenants, in order to avoid enhancement, would have to prove uniformity of rent since the Permanent Settlement. The presumption of Section 50 of Bengal Tenancy Act will not be available to them under Section 115, Bengal Tenancy Act, in consequence of the framing of the Record of Rights '
10. The difficulty is created partly by the statement that, when, under the provisions of Section 50 of the Bengal Tenancy Act an occupancy holding is presumed to have been held at a uniform rent from the time of the Permanent Settlement, the status of the tenant may still differ from that of a raiyat holding at a fixed rent, but more specially by the opinion expressed in the leaned Subordinate Judge's last sentence.
11. The entry in the Record of Rights, to which a presumption of correctness attaches under Section 103-B of the Bengal Tenancy Act, describes the holding as a Kaim Karsha permanent tenure. The term Kaim Karsha is explained by the learned Munsif. 'The word 'Karsha,' he says, literally means a cultivating interest, and the term 'Kaim Karsha' would mean only a permanent or fixed Karsha, i.e., in its literal meaning it would be only a holding al a fixed rent.' He goes on to remark that at the present day an occupancy holding at a fixed rent is in many cases not easily distinguishable from a tenure.
12. The result of the learned Subordinate Judge's view is this. The entry in the Record of Rights imports at least fixity of rent. Assume that the holding is not a tenure but a raiyati holding Before the Record of Rights was prepared it was a holding to which Section 50 of the Act would have been applicable if uniformity of rent for twenty years could be proved. It may well be that the description 'Kaim Karsha' was adopted for the very reason that the facts raised the statutory Presmuption. We have it from another Part of the learned Munsif's judgment that, before the Record of Rights was finally published, the plaintiff unsuccessfully attempted to get rid of the word 'Kaim' by means of an objection lodged under Section 103-A. After the publication of the Record no attempt seems to have been made by him to dispute the accuracy of the description under Section 106.
13. Nevertheless, in the opinion of the learned Subordinate Judge, if the correctness of the Record is now disputed Section 115 of the Act precludes any reference to Section 50 and the tenant must do the best he can without assistance from that section. Such a result would appear to be absurd and unjust, but if that is the law we must of course accept it.
14. In the argument before us, reliance was placed for the plaintiff on the decision ot the Pull Bench in Pirthi Chand Lal Chowdhury v. Basarat All 3 Ind. Cas. 449 : 37 C. 30 : 13 C.W.N. 1149 : 10 C.L.J. 343 (F.B.). The present point, however, did not come before the Full Bench for decision.
15. Section 115 enacts that, 'when the particulars mentioned in Section 102, clause (b), have been recorded under this Chapter in respect of any tenancy, the presumption under Section 50 shall not thereafter apply to that tenancy.' The word 'thereafter'points to the period after the particulars mentioned have been recorded, but the question whether the recording of the particulars ended with the final publication of the Record or with the further proceedings which might be taken under Section 105 or Section 106 had given rise to some difference of opinion. All that the Full Bench decided was that, in proceedings under Section 105 of the Act, (to which Section 105 A must now be added), for the settlement of a fair rent, the tenant was entitled to the benefit of the presumption under Section 50.
16. It is true that towards the close of the judgment of the majority of the Full Bench, some observations were made dissenting from the view taken in Secretary of State v. Kajimuddi 26 C. 617 : 13 Ind. Dec. (N.S.) 997 that a tenant whose rent had been entered in a Record of Rights as liable to enhancement might claim the benefit of Section 50 in a suit instituted by him under Section 111 to contest the correctness of the entry. 'There can be no doubt,' said the learned Judges, 'that a suit of the nature brought then would lie as being within the contemplation of Section 111, but after the tenant had omitted to appeal to the Special Judge or to take proceedings under Section 106, he could not be heard to complain that he had been deprived of a cherished right, when his claim for the benefit of the presumption under Section 50 was confronted by the provisions of Section 115.'
17. So too in Harihar Persad Bajpai v. Ajut Misir 22 Ind. Cas. 604 : 45 C. 930. the tenants having been recorded as occupancy raiyats and not as raiyats holding at fixed rents it was held that in a subsequent suit brought by the landlord it the Civil Court to enhance their rent they were not entitled to fell back on the presumption under Section 50.
18. But the present case is very different. Here the holding was recorded as a holding at a fixed rent. It was the landlord who took no steps under Section 105 or Section 106 to challenge the correctness of this entry but now endeavours to go behind it. It will certainly go far to deprive the tenant of a cherished right, if, in such a case as the present, he is told that he cannot support the entry by reference to the very presumption in virtue of which the entry may have been made.
19. In my opinion, we are not obliged to construe Section 115 in the way contended for. The rent having been entered as a fixed rent, the tenant is not 'thereafter' applying the presumption under Section 50 when he seeks to establish that the entry was founded on the presumption. In such a case the hypothesis is that the presumption has already been applied and all that the tenant asks is liberty to support and defend the entry on the grounds on which it was made. If that liberty is denied him, he will be deprived of the benefit of the presumption not only 'thereafter' but also in respect of the period prior to the publication of the Record. He will be sadly crippled in his defence and in the result will be doubly. deprived, first, of the benefit of the presumption under Section 50 and then of the benefit of the presumption under Section 115.
20. On the other hand, where the rent is entered as variable in a record made and completed under Chapter X, the raiyat does 'thereafter' apply the presumption if he seeks aid from it by way of attack in a suit under section 111 or by way of defence in a suit by the landlord for enhancement of rent.
21. It may be said that the Revenue Officer leaves no record of his reasons for making any particular entry. But in such a case as the present, where the terms of the tenancy have to be gathered not from a written instrument but from the conduct of the parties, it is difficult to suppose that the Revenue Officer was not guided, at any rate in part, by the provisions of Section 50. In any case I should be of opinion that an entry should be taken to have been made on all the grounds on which it might have been mace.
22. The whole reasoning of the learned Subordinate Judge is coloured by his view as to the effect of Section 115. He refers himself, without question of dissent, to the 'uniform payment of rent since 1282 B.S.,' found by the Munsif. He laid some strees on a Cess Return in which this holding is entered under the general head of raiyati holding. An examination of the return, however, shows that it maker, no distinction between raiyati holdings at fixed rates and other raiyati holdings. He appears to suggest as I have already indicated, that, even if the presumption under Section 50 was applicable when the Record of Rights was under preparation, the tenant would not become by force of the presumption a raiyat at a fixed rent, a view from which I disagree. His conclusions that 'the tenancy in question was never held at any rent fixed in perpetuity and consequently the incident of transferability does not attach to it' and his late findings 'that the entry of Kaim Karsha, as made in the Record of Rights, was not correct and that the presumption in its favour is sufficiently rebutted,' are all due to the fact that he misapplied the law to the facts with which he had to deal.
23. I have no doubt that if the learned Subordinate Judge had not misdirected himself in law, he would have come to the same conclusion as the learned Munsif.
24. In the result, therefore. I would set aside the judgment and decree of the Subordinate Judge and restore the decree of the Munsif dismissing the suit in its, entirety. The defendant No. 1 is entitled to his costs of this Court and of the lower Appellate Court.
25. In view of the judgment which we have delivered in Appeal No. 1022 this Appeal No. 992 must be dismissed. In this case we make no order as to costs.
26. I agree. As I read Section 115 Bengal Tenancy Act, it provides against clashing of presumptions. It will not permit the presumption under Section 50 of the Act to override that raised from the record of the particulars under Chapter X. The marginal note against the section lends support to this view: It will not be reasonable to suppose that the Legislature intended by enacting Section 115 to preclude evidence of uniform payment of rent for the statutory period in support of the entry of fixity of rent in the Record of Rights where such entry is, presumably, based on the evidence of such uniform payment. It will be shutting out a very valuable piece of evidence in favour of a comparatively weak one. If the tenant succeeds in proving uniform payment of rent from the time of Permanent Settlement, the rent shall not be liable to be increased, whereas the presumption of the correctness of an entry in the Record of Rights though based on such uniform payment is only a rebuttable one.
27. I fully concur in the reasonings adopted by my learned brother and the conclusion at which he has arrived.