Entitlement to the presumption under Sub-section (2) of Section 50 of the Bengal Tenancy Act based on holding at a uniform rate for twenty years.

JUDGMENT

Asutosh Mookerjee, J. - This is an appeal under Clause 15 of the Letters Patent from a judgment of this Court in an appeal preferred u/s 109A of the Bengal Tenancy Art, in the course of a proceeding u/s 103.

2. It appears that in 1915, a Record of Rights was prepared which contained an entry to the effect that the defendants respondents were occupancy raiyats. The landlords appellants thereupon instituted the present proceeding for enhancement of rent on the ground that the prevailing rate was higher than that paid by the tenants. The tenants resisted the claim on the ground that they held at a rent or rate of rent which was fixed in perpetuity and that their rent was consequently not liable to enhancement, The Settlement Officer gave effect to the contention of the landlord and allowed the claim for enhancement. Upon appeal, the Special Judge upheld the defence and dismissed the claim for enhancement. On appeal to this Court. Mr. Justice Teunon held that the judgment of the Special Judge was not liable to be challenged in second appeal as erroneous in law. Mr. Justice Huda, on the other hand, came to the conclusion that the view of the Special Judge was based upon an erroneous construction of Section 50 of the Bengal Tenancy Act. The result was that the decision of the Special Judge stood affirmed. On the present appeal, it has been contended on behalf of the landlords that the decision of Mr. Justice Teunon in affirmance of the decision of the Special Judge is based upon an erroneous interpretation of Sub-section (2) of Section 50.

3. Sub-section (2) of Section 50 provides that where a raiyat and his predecessors-in-interest have held at a rent or rate of rent which has not been changed from the time of the Permanent Settlement, the rent or rate of rent shall not be liable to be enhanced except on the ground of an alteration in the area of the tenancy or holding. In the present case, there is no direct evidence that the raiyats held at a rent or rate of rent which had not been changed from the time of the Permanent Settlement. They are consequently compelled to have recourse to the presumption specified in Sub-section (2) of Section 50, which provides as follows: "If it is proved in any suit or other proceeding under this Act that a raiyat and his predecessors-in-interest have held at a rent or rate of rant which has not been changed during the twenty years immediately before the institution of the suit or proceeding, it shall be presumed, until the contrary is shown, that they have held at that rent or rate of rent from the time of the Permanent Settlement." Consequently, the raiyats have to establish in this case that they and their predecessors-in-interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the institution of the suit or proceeding. The landlords have argued that the raiyats have failed to establish the affirmative of this proposition, because from that it is conceded that no rent has in fact been paid by them to their landlords since 1893, in other words, during the seventeen years immediately preceding the institution of the suit. The substance of the contention of the landlords is that the tenant is entitled to the benefit of the presumption under Sub-section (2) of Section 5(sic) only if he proves actual payment at an unvaried rate, if not in each of the twenty years preceding the suit, at least in so many of them as to lead to the inference that there has been no change in the rent paid throughout the period of twenty years. We are of opinion that this contention cannot be accepted in view of the plain language of Sub-section (2) of Section 50. The tenant is not required to establish actual payment of rent during the twenty years at a uniform late; he has to establish that he and his predecessors-in-interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the suit or proceeding. This