The onus of proving the surrender of tenancy lies on the party alleging it, and non-payment of rent by itself does not establish extinguishment of a tenancy.

1. THIS appeal arises out of the judgment and decree passed by the learned Subordinate Judge, Second Court, Midnapore, in Title Appeal no. 412 of 1970 reversing the judgment and decree passed by the learned Munsif, Garbeta, in Title Suit No. 160 of 1967. The plaintiffs, are the appellants in the instant appeal and the said suit was instituted by the plaintiffs for declaration of title and for permanent injunction in respect of plot no. 605 of Mouja Bejharia.

2. IT is the case of the plaintiffs that the said disputed plot No. 605 along with another plot no. 516 constituted a 'jote' measuring 1. 23 acres and the said land had been held by the predecessor -in- interest of the plaintiffs, namely, Kormu santhal. In the C. S. record of rights the said 'jote' was recorded in the name of kormu Santhal in Khatian No. 132. The plaintiffs 'have contended that the said kormu Santhal and thereafter his successor-in-interest, including the plaintiffs have owned and possessed the said lands but in the revisional record of rights plot No. 516 has been recorded in the name of the plaintiffs and/or their predecessor -in- interest in khatian No. 132 but the disputed plot no. 605 has been wrongfully recorded as the khas khatian of the landlord Akshoy Kumar Roy. In view of such erroneous entry in the revisional record of rights, the heirs of said Akshoy Kumar Roy have been attempting to dispossess the plaintiffs. Accordingly, the said suit had to be instituted by them. It may be noted that the state of West Bengal was impleaded as a party defendant in the said suit. The said suit was conetsted by the defendants Nos. 1 to 5 jointly by filing a written statement and it has been contended in the said written statement that there had been a settlement of the said two plots comprising the 'jote' measuring 1.23 acres in favour of Kormu santhal. But soon after the C. S. record of rights, the said Kormu Santhal has surrendered the disputed plot within the said 'jote' and the landlord Akshoy Kumar Roy converted the suit plot, on such surrender,' as his khas land and the said plot along with plots Nos. 602, 603 and 604 all belonging to the landlord were formed into a single block without any intervening 'ail' and the landlord had thereafter started possessing the same. In the aforesaid circumstances, the revisional record of rights had been prepared correctly and the objection under section 44 (1) of the West Bengal Estates acquisition Act made by the plaintiffs was overruled.

3. IT appears that a Pleader Commissioner was appointed for inspection of the said disputed plot and from the report of the Pleader Commissioner it transpires that there were existence of the 'ail' in some portion of the said disputed plot and in other portion, the 'ail' had been removed very recently and transplantation of paddy was made on such removed portion but the said fact could be detected by the Commissioner at the time of local inspection.

4. THE learned Munsif has held that the defendant landlords failed to establish by any cogent evidence as to how the disputed plot had been surrendered by Kormu Santhal and he has come to the finding that in the absence of such surrender the tenancy in favour of the said Kormu Santhal cannot be scrapped. He has also taken into consideration the report of the Pleader Commissioner and has noted that the case of the defendants that the suit plot was converted into a compact block after making it khas cannot be accepted because the existence of 'ail' could be detected at the time of local inspection of the said plot The suit plot and other plots were not made into a compact block as alleged by the defendants. The learned Munsif has also noted that no document in support of the case of surrender could be filed by the defendants and the reason for surrendering the said plot by Kormu santhal also does not stand scrutiny. In that view of the matter the learned Munsif accepted the case of the plaintiffs and decreed the said suit. The contest