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Petitioner: HABIBULLAH VS Respondent: KHATIM AHMED
P L D 1960 Dacca 136
P L D 1960 Dacca 136
Before Amin Ahmed, C. J. and Chakraborti, J
HABIBULLAH‑Appellant
versus
KHATIM AHMED and others‑Respondents
Letters Patent Appeal No. 4 of 1958, decided on 13th February 1959.
Bengal Tenancy Act (VIII of 1885), S. 104 (J)‑Whether entry other than one relating to rent can raise any irrebuttable pre sumption.
Under section 104 (J) of the Bengal Tenancy Act, 1885, although the entry relating to the rent settled is conclusive, any other entry is not irrebuttable but `shall be presumed to be correct until it is proved by evidence to be incorrect'.
M. L. Acharyya for Appellant. A. F. M. Mesbahuddin, with Siddique Ahmed Chowdhury for Respondents.
JUDGMENT
CHAKRABORTI, J.‑Defendant No. 1 is the appellant and this Letters Patent Appeal arises out of a suit for a declaration of the plaintiffs' title to the lands described in Schedule 2 of the plaint and for recovery of khas possession after evicting the defendants. This case has a long history behind it. Originally, the suit was in respect of C.. S., plots described in the plaint, namely, plots Nos. 2329, 2328 and 2330/2703. The plaintiffs' case was that so far as plot No. 2328 is concerned, this plot along with plot No. 2327 belonged to them in khas and they permitted the pre decessors of defendants Nos. 2 to 8, Arban Ali, Meher Ali and Sujani Khatun, to live in R. S. plots Nos. 2327 and 2328 just before the R. S. operations in the year 1924. But these persons, namely, Arban Ali, Meher Ali and Sujani Khatun, taking advantage of the plaintiffs' absence, got these lands fraudulently recorded in their names as korfa raiyats. The plaintiffs thereafter brought a criminal case against these persons and the case was ultimately compromised by Arban Ali, Meher Ali and Masuk Ali, a brother of Sujani Khatun, and the plaintiffs' title was admitted. The plaintiffs, according to the terms of the solehnamah, leased out another 4 gandas of land in favour of Arban Ali and others in January 1925, who surrendered plots Nos. 2327 and 2328 in the khas possession of the plaintiffs. Defendant No. 1, who is the appellant before this Court, had ill‑feelings with the plaintiffs. The pro forma defendant No. 9 in the meantime took two kabalas from the heirs of Meher Ali and from defendant No. 6 and predecessors of defendant Nos. 7 and 8, who are the heirs of Sujani, in October, 1942. The defendant, having come to know of all the transactions, got an antedated kabala from defendants Nos. 3 to 5, Arban Ali and the heirs of Sujani Khatun, by exerting pressure on them and also by forging their thumb‑impressions. One of the executants of those kabalas, however, filed a petition before the District Sub‑Registrar alleging that the thumb‑impression was taken forcibly from her by defendant No. 1 and there was a criminal prosecution of defendant No. 1 at the instance of the District Sub‑Registrar. Thereafter defendant No. 1 approached the plaintiff for a compromise and later filed a petition for arbitra tion in the Baliachari Union Board. This arbitration was disposed of on 24‑3‑43. The pro forma defendant No. 9 who had also obtained the kabalas, as referred to above, surrendered his kabala land amicably to the plaintiffs. The plaintiffs' case, therefore, in substance is that Arban Ali, Meher Ali and Sujani Khatun only possessed plots Nos. 2327 and 2328 as licenses and they were wrongly recorded as korfa raiyats in the khatian and, therefore, they had no transferable interest. The plaintiffs further contended that defendant No. I has cut away some trees from plot No. 2328 and he turned the lands of plots Nos. 2328 and 2329 into potato and bringal garden and also cut away some trees from plot No. 2329 and dug a ditch there. The plaintiffs' further complaint is that defendant No. 1 obstructed his passage to the tank in R. S. plot No. 2333 and was trying to obstruct his passage to the District Board road on R. S. plot No. 2703. The plaintiffs, therefore, allege that they were dispossessed by the above acts and hence they brought this suit.
2. The defendants did not assert any claim to plot No. 2329. Defendant No. 10 claimed plot No. 2330/2703 and defendant No. 1 claimed plot No. 2328 as a purchaser from the heirs of Arban Ali and others who were recorded as korfa raiyats in the khatian. He, however, contended that in plots Nos. 2328 and 2327 Arban Ali, Meher Ali and Sujani had their homestead and they had raiyati interest in the same and they were wrongly recorded as korfa raiyats in the khatian and that he had purchased the interest of Arban Ali and heirs of Meher Ali and Sujani Khatun. His case is that he had purchased 3 gandas of plot No. 2328 from the heirs of Arban Ali and Sujani Khatun and was in possession of the same and the remaining land was in possession of Nazir Ahmad and Maniruzzaman, sons of Sujani Khatun. He also denied the title of defendant No. 9.
3. So far as plot No. 2330/2703 is concerned, the trial Court found title with the plaintiffs and their claim was decreed. That decree was not challenged. As regards plot No. 2328, the trial Court found that the presumption of the correctness of the Settlement Record was rebutted and defendant No. 1's vendor was a mere licensee. On that finding, the suit was decreed in respect of that plot as well. There was an appeal by defendant (No. 1 and in appeal the judgment and decree of the trial Court were affirmed. There was then a Second Appeal before this Court and Ibrahim, J., who heard the Second Appeal, set aside the judgments of the Courts below so far as plot No. 2328 is concerned and he directed a fresh hearing of the appeal in respect of that plot. His Lordship held:
"I think the case should go back on remand to the lower Appellate Court so that the learned Subordinate Judge may come to a distinct finding as to whether the land appertains to a noabad taluk and whether the record‑of‑rights was prepared under Part II, Chapter X of the Bengal Tenancy Act, and to decide the case according to law in the light of the finding he comes to." .
The matter went back to the first Appellate Court and the learned Subordinate Judge by his judgment, dated 28‑9‑53, again found that the trial Court was absolutely correct in its finding that Arban Ali and his co‑sharers were mere licensees under the plaintiffs' predecessor. He, therefore, dismissed the appeal preferred by defendant No. 1. Defendant No. 1 then preferred a Second Appeal before this Court against the judgment and decree of the learned Subordinate Judge.
4. The dispute in the Second Appeal before this Court was only with regard to plot No. 2328. It appears from the judgment of Sattar, J., who heard the Second Appeal, that:
"A question arose as to whether the presumption arising out of the R. S. records had been rebutted. It was argued on behalf of the appellants that as this land formed part of a noabad taluk the Settlement record‑of‑rights was prepared under Part II of Chapter X of the Bengal Tenancy Act, and, therefore, different considerations from those that arise under Part I of Chapter X would arise with regard to presumption arising out of these records."
This matter was argued before his Lordship and his Lordship held that the disputed record‑of‑rights did not raise any irrebuttable presumption in respect of the status of Arban Ali, Meher Ali and Sujani Khatun but only raised a rebuttable presumption under section 103‑B of the Bengal Tenancy Act. It was not challenged that the Courts below had found that the plaintiffs had succeeded in rebutting the presumption and this aspect of the question was not agitated before his Lordship Sattar, J., and neither before us.
5. This Latters Patent Appeal was preferred before this Court against the judgment and decree of Sattar, J., and Mr. M. L. Acharyya who appears for the appellant has urged only one point before this Court. He has contended that in view of the fact that the Settlement record was prepared and published under Part Il, Chapter X of the Bengal Tenancy Act, the presump tion regarding the entry in the Settlement record‑of‑rights was irrebuttable and it was wrongly decided by the learned Single Judge that this entry was liable to be rebutted under section 103‑B of the Bengal Tenancy Act. Mr. Acharyya has referred us to the provisions of sections 104‑H and 104‑J of the Bengal Tenancy Act and wants to conclude from these two sections that the entry, so far as the status of the predecessor of defendant No. 1 was concerned, was final and was not liable to be rebutted by any evidence. He has relied on the case of Kumar Chandra Singh Dudhoria and others v. Midnapore Zemindary Company Limited (46 C W N 802 (P C)).
6. Mr. Mesbahuddin appearing for the respondents again contended that section 104‑J of the Bengal Tenancy Act only provides that the entry regarding the rent was final and it could not be urged that the presumption regarding the other entries was also irrebuttable. He has relied on the case of Raja Promoda Nath Roy v. Asiruddin Mandal and the Secretary of State for India (15 C W N 896), Harendra Kumar Rai Chowdhury and others v. The Secretary of State for India in Council and others (33 C W N 385) and The Midnapur Zamindary Co. Ltd., v. The Secretary of State for India in Council (34 C W N 1 P C).
7. Mr. Acharyya's contention is that as the plaintiffs did not institute any suit within six months from the date of the certificate of the final publication of the record‑of‑rights prepared under Part I1 of Chapter X of the Bengal Tenancy Act, the presumption attached to the khatian became final. Part II of Chapter X of the Bengal Tenancy Act provides for settlement of rents, preparation of settlement rent‑roll and disposal of objections and cases where settlement of land revenue is being or is about to be made. Sections 104‑H and 104‑J of the Bengal Tenancy Act are within this Chapter. Section 104‑J of the Bengal Tenancy Act provides as follows:
"Subject to the provisions of section 104‑H, all rents settled under sections 104‑A to 104‑F and entered in a record‑of‑rights finally published under section 103‑A or settled under section 104‑G, shall be deemed to have been correctly settled and to be fair and equitable rents within the meaning of this Act."
8. So it is clear that the section provides only that the rents would be deemed to have been correctly settled and to be fair and equitable. Mr. Acharyya's argument is that if the rent stands, automatically the status of the defendant as a tenant would remain, because if the plaintiffs' contention is accepted that the defendants were licensees the question of settlement of rent could not arise. But this is only a fallacious argument. Section 104‑H provides for jurisdiction of Civil Courts in matters relating to rent and section 104‑J also deals with presumption as to rent settled under sections 104‑A to 104‑G of the Bengal Tenancy Act. Mr. Acharyya drew our attention to clause (c) of subsection (3) of section 104‑H of the Bengal Tenancy Act. Clause (c) reads as follows:
"that the relation of landlord and tenant does not exist."
His Lordship Sattar, J., also referred to clause (e) of the said subsection (3) of section 104‑H of the Bengal Tenancy Act which was not placed before his Lordship there and the said subsection reads as follows:
"that the tenant belongs to a class different from that to which he is shown in the record‑of‑rights as belonging."
9. Now all these clauses have bearing on the question of rent which follows as a consequence where there is a question of relationship of landlord and tenant between the parties. The plaintiffs' contention on the other hand is that the defendant's predecessors were mere licensees and even the defendant‑appellant did not admit the correctness of the entry regarding the status in the khatian, for, his case is that his predecessors had occupancy rights in the same lands whereas the khatian entry is that of a korfa raiyat. The case relied on by Mr. Acharyya (Kumar Chandra Singh Dudhoria and others v. Midnapore Zamindary Company, Limited) does not help him very much. It appears that the Judicial Committee of the Privy Council in that case did not consider the point whether any entry other than the rent in a finally published record‑of‑rights prepared under Part II, Chapter X, of the Bengal Tenancy Act could raise any irrebuttable presumption or otherwise. In that case, the rent of the patnidar was recorded as Rs. 1028‑2‑0 and there was a suit for rent at that rate. The defendant contended that this rent could not be realised from him as there was a definite contract with the landlord to the effect that the rent would be Rs. 847. The learned Subordinate Judge held in favour of the plaintiffs. Of course, the learned Subordinate Judge was of opinion that the record‑of-rights having been prepared under Part II of Chapter X of the Bengal Tenancy Act it raised an irrebuttable presumption and the defendants were not permitted to question that rent. On appeal, however, their Lordships of the Calcutta High Court held that though the amount of rent in the record‑of‑rights could not be challenged, the tenants were entitled to show, in view of the contract, that their liability could not go beyond the rent agreed upon. There was an appeal before the Judicial Committee of the Privy Council and their Lordships of the Judicial Committee of the Privy Council did not accept that view of the Calcutta High Court and the judgment of the learned Subordinate Judge was restored.
10. Here in this case the question is whether the other entries carried any irrebuttable presumption. This point was dealt at length by Chitty, J., in the case of Raja Promoda Nath Roy v. Asiruddin Mandal and the Secretary of State for India. His Lordship Chitty, J., was of opinion that where there was no dispute as to entry of a rent settled or an omission to settle rent, a suit by a tenant for a declaration that an entry in the record-of‑rights describing him as a tenure‑holder was errouneous and for a declaration that he was an occupancy raiyat was not a suit under section 104‑H but fell within the province of section III‑A of the Bengal Tenancy Act and might be brought within six years.
It was held by Chitty, J., at page 897 as follows :‑-----
"The first question depends on whether the suit falls within the class of suits indicated by section 104‑H of the Bengal Tenancy Act. If it must be regarded as brought under that section, it is admittedly out of time having been instituted more than six months after the certificate of final publication of the record‑of‑rights. On 'a careful consideration of the nature and a scope of the suit and a perusal of the sections in Chapter X, of the Bengal Tenancy Act, I am clearly of opinion that this is not a suit within the purview of section 104‑H. A suit to be brought under that section must have reference to an entry of a rent settled in a Settlement Rent Roll or to the omission to settle such an entry. The plaintiffs' suit is not of that nature. He makes no complaint as to the rent settled nor as to the entry in the Settlement Rent Roll. His complaint is that being an occupancy raiyat he has been wrongly described as a tenure‑holder in the record‑of‑rights [see section 102 (b)]. The Settlement Rent Roll need only show the name of each landlord and of each tenant, and the amount of each tenant's rent payable for the area shown against his name [section 104‑A (2)]. His status would not necessarily appear there. It is true that the question of status might come into a suit under section 104‑H [see clause (3) (e) of that section] but that is not the case here. This suit clearly falls within the category of suits alluded to in section 111‑A, a suit for declara tion of a right ‑under Chapter VI, of the Specific Relief Act, 1877. The period of limitation for such a suit would be 6 years, and this suit is, therefore, within time."
11. In the case of Harendra Kumar Rai Chowdhury and others v. The Secretary of State for India in Council and others, relied on by the learned Advocate for the respondents, Page, J., observed as follows at page 387:
"The defendant's second contention is that under section 104 (J) and section III‑A of the Bengal Tenancy Act, the plaintiffs are precluded from asserting in the present suits that they are not liable as tenants to pay the rent settled and cesses in respect of the two diarah mahals, as they have failed to challenge the entries to that effect in the record‑of‑rights as provided by the Act.
The answer to that contention is that under section 104 (J), although the entry relating to the rent settled is conclusive, any other entry is not irrebuttable but shall be presumed to be correct until it is proved by evidence to be incorrect'."
The Privy Council also took the same view in the case of The Midnapur Zamindary Co. Ltd., v. The Secretary of State for India in Council, relied on by the learned Advocate for the respondents. Their Lordships of the Judicial Committee of the Privy Council approved of the decision reported in 15 C W N 896 (Raja Promoda Nath Roy v. Asiruddin Mandal and The Secretary of State for India, discussed above. Having regard to all these authorities and facts stated above, we are of opinion that the view taken by Sattar, J., is correct and that the presumption of the entry in the khatian regarding the status of the plaintiffs' predecessors was clearly a rebuttable one.
12. This is the only point that was pressed before this Court and, this point having been found against the appellant, the result is that the appeal is dismissed with costs.
AMIN AHMED, C. J.‑I agree.
K. B. A. Appeal dismissed.