The main legal point established in the judgment is the significance of the record-of-rights in raising a presumption of the landlord and tenant relationship and the admissibility of the entries in the record-of-rights, attracting the statutory presumption under sec. 103B of the Bengal Tenancy Act, 1928.

JUDGMENT

Biswas, J. - This is an appeal in a suit for assessment of rent in respect of a piece of bhiti land within the municipal limits of the town of Dacca. The claim was at the rate of Rs. 3 per annum, and the plaint included a prayer for recovery of three years' arrears at this rate. There were two Defendants in the suit having a common interest, but it was contested by Defendant No. 1 alone. The learned Munsif who tried the suit dismissed it, but on appeal the learned Subordinate Judge reversed the decision, and assessed the rent at 8 annas per year, disallowing the claim for arrears. Hence this second appeal by Defendant No. 1. There is no controversy now as to the Plaintiff's title to the disputed land. Both Courts have concurrently found that the land is not only within the geographical limits of the Plaintiff's estate, but also appertains to it as part of its mal assets. Both parties accept this finding, as they must, but it does not necessarily give the Plaintiff a right to recover rent from the Defendants. That must depend on whether the Plaintiff is further able to show that the parties stand to each other in the relation of landlord and tenant. The onus of proof in this matter, it is conceded, lies on the Plaintiff, but once this is established, it will be for the Defendants to resist the claim, if they can, by proof of a rent-free title. [Jagdeo Narain Singh v. Baldeo Singh L. R. 49 I. A. 399 : S. C. 27 C. W. N. 925 (1922)].

2. The first and main question, therefore, which arises in the case is whether or not the relationship of landlord and tenant has been established. The Courts below took divergent views on the point; the learned Munsif held against the Plaintiff, while the learned Subordinate Judge decided the other way. The difficulty is that there is no direct evidence of letting from which a contract of tenancy may be deduced: a finding of tenancy, if any, must be a matter of inference or presumption.

3. The Plaintiff contends that there are materials from which such an inference or presumption may be drawn, and the most important of these is said to be the record-of-rights in respect of the disputed land, which was finally published in the year 1916. Reliance is also placed on alleged admissions of tenancy in the written statement, and on certain butwara proceedings among the proprietors of the parent estate.

4. These last two items may be disposed of at once. The written statement contains a clear denial of the relationship of landlord and tenant, and then in the alternative, sets up a plea of rent-free title which doubtless involves the assumption of a tenancy under the Plaintiff. It is difficult to see how in the face of the positive denial this alternative plea can be treated as an admission of tenancy. As regards the butwara proceedings, all that appears is that the Partition Deputy Collector included the disputed holding in the computation of assets, but this would not necessarily show that the Defendants were in possession as tenants, whether rent-paying or rent-free.

5. The record-of-rights is undoubtedly of greater significance. The disputed land is recorded therein as appertaining to the Plaintiff's revenue-paying estate, and the Defendants' predecessor-in-interest is shown as " dakhalkar," with a note in the column for rent to the effect: "assessable to rent, but no rent paid or received." What is the effect of these entries?

6. The word "dakhalkar" by itself, as meaning only an occupier, may perhaps be regarded as inconclusive, but it does not necessarily exclude the idea of a tenancy. It may well be that this word was used because admittedly the land was bhiti, that is to say, non-agricultural in character, with a pucca building on it which was used as shop-rooms, and strictly speaking, a tenant of such land could not be recorded as a "tenant" under the Bengal Tenancy Act, not being one who could be brought within any of the specific categories mentioned in sec. 4.

7. Be that as it may, the other en