1. The plaintiff is the appellant before us. He applied under Section 105 of the Bengal Tenancy Act for settlement of rent payable by the defendant. The defendant claimed that he was a raiyat holding at fixed rates. The First Court found that the tenant was not a raiyat holding at fixed rates and it assessed rent at the rate of Rs. 2-8-0 on the whole of the tenant's holding, it also gave an enhancement on account of the rise in prices. Both sides appealed to the Special Judge. The plaintiff appealed against the decision as to the rate of rent and the defendant appealed against the decision as to status. The learned Judge held that the presumption of Section 50(2) of the Bengal Tenancy Act should apply in this case, and applying that presumption he held that the defendant was a raiyat at fixed rates. Some old papers appear to have been filed in the case dating back to 1264, 1275 and 1276. The papers of 1275 and 1276 show that the tenant was holding at the same rate at which he was holding at the time of the institution of the suit. The paper of 1264, however, shows a different rate. This paper, it appears, was neither signed, nor sealed, nor is there any evidence to show that it was written by any particular person, and in that state of facts the learned Judge held that Section 90 of the Evidence Act did not apply.
2. The first argument addressed before us is that the learned Judge is wrong in so deciding and that the Judge ought to have presumed that the document was written by the person whose duty it was to write such documents. In my opinion, this argument cannot be sustained. Section 90 of the Evidence Act provides that the Court may presume that the signature and every other part of a document, which purports to be in the handwriting of any particular person, is in that person's handwriting. As already stated, the document has not been signed, nor does the document purport to be in the handwriting of any particular person. We are asked to go beyond the presumption specified in Section 80 of the Act. The first point, therefore, cannot succeed.
3. The next point taken is that the tenancy was created subsequently to the Permanent Settlement and that, therefore, the presumption raised in Section 50(2) of the Bengal Tenancy Act does not apply. As regards that, it is a sufficient answer to say that the learned Judge refused to accept the evidence which bore on the question of the creation of the jote subsequently to the date of the Permanent Settlement; and, that being his finding, the provisions of Section 50(2) of the Bengal Tenancy Act apply. The result then is that the learned Judge's decision as regards the status of the defendant must be upheld.
3. It is then argued that the learned Judge has not dealt with the appeal of the plaintiff as regards the rate of rent to be assessed. The learned Judge points out that there has been some increase in the area from the date of the earliest papers, which he accepts and he assesses rent in respect of the excess area. He does not, in so many words, accept the rate which is settled by the Assistant Settlement Officer, vis., Rs. 2-8-0 per kur, but as he does not interfere with the rent so settled, it is obvious that he intended to uphold the rent thus settled.
4. Then it is further urged that the Judge ought to have entered into a discussion of the evidence in regard to rent because the landlord claimed some higher rate than Rs. 2-8-0. As regards that all I need say is that it does not appear that that question was argued before the learned Special Judge.
5. In my opinion, this appeal fails and must, therefore, be dismissed with costs, two gold mohurs.
6. I agree.