The statutory presumption under Section 5(5) of the Ben. Ten. Act applies when the area held by a tenant exceeds 33 acres or 100 bighas, and the burden of proof lies with the party challenging the presumption.

JUDGMENT

Mitter, J. - This is an appeal by the plaintiff and arises out of a suit in ejectment.

2. Plaintiff's case is that he had a raiyati right over 88 bighas odd land bearing a rent of Rs. 83-5-7 1/2 pies per year and that the defendant is an under-raiyat under him, that the plaintiff served a notice u/s 49, Ben. Ten. Act, on the defendant for vacating the land at the end of Chaitra, 1329 B.S. and that the defendant did not give up possession and hence the suit was instituted. The defence of the defendant is that he is an occupancy raiyat and that no notice was served on him.

3. The Court of first instance found that the status of the plaintiff was that of a raiyat and that consequently the defendant was an under-raiyat, that notice u/s 49, Ben. Ten. Act, was served on the defendant and that the plaintiff was entitled to get khas possession of the suit lands by ejecting the defendants therefrom. A decree for mesne profiits was also given.

4. Against this decision of the Munsiff, an appeal was taken to the Court of the Additional Subordinate Judge of Rajshahi. The learned Subordinate Judge reversed the decision of the Munsiff and dismissed the plaintiff's suit.

5. Against this decision, a second appeal has been taken to this Court and it has been argued on behalf of the appellant that the lower appellate Court has committed an error of law in applying the presumption u/s 5, Sub-clause (5), Ben. Ten. Act, to the facts of the present case, seeing that it has been established that the area of the joto under which the defendant holds was only 88 bighas. The Subordinate Judge says:

The law does not require that the area of more than 100 bighas should be in one single jote. For the purpose of the presumption u/s 5(5), Tenancy Act, to arise, it is sufficient that the tenant should hold area which exceeds 100 bighas. So, as in the present case we start with the presumtion that plaintiff is a tenure holder and as the presumption is not rebuttad by showing that a portion is reserved to be cultivated by the tenant himself : vide Bibudendra Man Singh v. Debendra Nath Das [1914] 20 C.L.J. 140 and as the presumption is not rebutted by the fact even of the lease or rent receipt describing the tenant as raiyat : vide Gokul Mandar v. Pudmanund Singh [1893] 20 Cal. 707 and as a person, even if he requires land for cultivation but subsequently converts himself into a rent receiver, gives by such conduct the status of raiyat to under-tenant so far as the under tenant and himself are concerned : vide Mahesh Jha v. Manbharam Mia [1907] 5 C.L.J. 522 and as the only documents (Exs. 2 and 3) relied on by the learned lower Court to hold that plaintiff is a raiyat, show nothing but admission of third parties and plaintiffs acquiescence, which are not good evidence against defendant and as in order to apply the presumption of Section 5(3), Tenancy Act in the case would be nothing short of putting the onus its the case on defendant in a circuitous way, which is not allowable, I hold that as the evidence and circumstances stand in the present case, the defendant has not been proved to be an under-raiyat for the land in suit.

6. It is argued on behalf of the appellant that the presumption u/s 5(5) would only apply where the area held by the tenant under a single grant is in excess of 100 bighas. It seams to me that that is the correct interpretation which ought to be put on the provisions of Section 5(5), Ben. Ten. Act. But even assuming that the presumption applies to a case where the tenant is shown to be in possession of the land in excess of 100 standard bighas, that presumption is rebutted by showing that in respect of the tenancy in question, the tenant was holding the land not in excess of 100 bighas but a smaller area and the tenancy in question along with other lands constituted the 100 bighas in possession of the tenant. The question in controversy was the subject of consideration before a Full Bench of the Patna High Court in the case of Balunki Rout