Judgement

Appeal (No. 11 of 1926) from a decree of the High Court (August 4, 1924) reversing a decree of the District Judge of Murshidabad (December 9, 1921) which reversed a decree of the Subordinate Judge of Murshidabad.

The suit was brought by the appellants on June 29, 1917, for declarations (a) that the company was an occupancy raiyat not a tenure-holder of Char Narainpur, and (b) that the entry in the record-of-rights prepared under the Bengal Tenancy Act, 1885, that the company was a tenure-holder of the lands was a nullity. The record-of-rights in question had been published in 1915, and the land in suit was about 800 bighas in area.

In addition to the respondent, who alone contested the suit, there were joined as defendants the zamindar and all persons claiming to hold as tenants of the land in suit.

The facts of the case and the issues framed appear from the judgment of the Judicial Committee.

The Subordinate Judge dismissed the suit. He was of opinion that the plaintiffs predecessors, the Menasakkans, had first acquired the land in 1841 under an ijara from Government as rent collectors, and that consequently, having regard to s. 5 of the Act, they were tenure-holders even if they cultivated the land themselves after the termination of the ijara. He held also that the suit was under s. 104H, and was consequently barred by sub-s. 2.

An appeal to the District Judge was allowed. He found that the Menasakkans had acquired and used the land for the purpose of cultivation before the ijara of 1841, and that they were occupancy tenants. He made a decree so declaring, but considered that he was precluded by authority from declaring that the entry in the record was a nullity.

Upon a second appeal to the High Court (Sanderson C.J. and Chotzner J.) the decree of the Subordinate Judge was restored. The learned Chief Justice, who delivered the judgment, was of opinion that the view that the Menasakkans had been in possession before 1841 was merely speculative, and that there was no evidence to displace the presumption that the entry in the record-of-rights was correct.

1929. June 20, 24, 25, 27. De Gruyther K.C, and E. B. Raikes for the appellants. Under the Code of Civil Procedure, 1908, ss. 100, 101, the District Judges finding that the plaintiffs were occupancy raiyats was binding upon the High Court Durga Choudhrain v. Jawahir Singh Choudhri. (( 1890) L. R. 17 I. A. 122, 127.) There was evidence to support the finding, more particularly the rubokaris included in the settlement record of 1880 made under Reg. VII. of 1822. The suit was maintainable under the proviso to s. 111A of the Bengal Tenancy Act, and was not barred ; s. 104H did not apply to it Promoda Nath Roy v. Asiruddin Mandal (( 1911) 15 Cal. W. N. 896.) ; Kumeda Prosunna Bhuiya v. Secretary of State. (( 1914) 19 Cal. W. N. 1017.)

Dunne K.C. and Kenworthy Brown for the respondent. Under s. 103B of the Bengal Tenancy Act, 1885, the entry in the record-of-rights was to be presumed to be correct. The onus of displacing that presumption was not discharged ; the evidence really supported the presumption. The finding of the District Judge was not binding in second appeal, as he gave no weight to the presumption under s. 103B, and there was no evidence whatever that the Menasakkans had cultivated the land before they became ijaradars. It was a question of construction whether the settlement record made under Reg.

VII. of 1822 showed that the plaintiffs were raiyats. The fact that in 1880 the plaintiffs were recorded as raiyats without any proof that there was then any dispute as to their status did not displace the presumption under s. 103B Secretary of State v. Gobind Prashad Barik. (( 1916) 2 Cal. W. N. 505.) Further, the suit was under s. 104H, sub-s. 3 (e), and was barred by s. 104H, sub-s. 2. The proviso to

s. 111A merely preserves the right to bring civil suits given by s. 104H. If the present suit is under s. 111A and not under s. 104H, sub-s. 3 (e), the latter claus