JUDGMENT
Duval, J.
1. Appeal No. 714 of 1922 : This is an appeal by landlords against the order of the Special Judge refusing to settle enhanced rents in respect of 7 khatians in a Settlement proceeding on the ground that the tenants have produced dakhilas of a uniform rate of rent for over twenty years which gives them the presumption that their rent is fixed – a presumption which is not rebutted by any evidence which the plaintiffs have been able to adduce. There are 185 tenants respondents in the appeal but in respect of Khatians Nos. 5, 20, 21, 36, 38, 47, 49, 53, 61, 62, 63 and 78 some or all of the tenants had died pending these proceedings and no substitution had been made. The appeals necessarily stand dismissed as against those respondents.
2. As to the other cases the evidence of the tenants is the production of dakhilas which have been accepted as genuine. The only evidence produced by the landlords is that jama wasil baki papers of over hundred years old had been put before the Court and it is pointed out that these tenancies do not find a place. This really rebuts nothing and the learned vakil for the appellants admits that in all similar, cases it has been held that such evidence would not rebut the presumption and, therefore-, he does nofe press the appeal.
3. The result is that the appeal is dismissed with costs which we assess at two gold mohurs.
Mitter, J.
4. I agree.
In Appeal No. 113 of 1922
Mitter, J.
5. These appeals arise out of (proceedings taken under Section 105 of the Bengal Tenancy Act in respect of eight Khatians Nos. 5, 16, 28, 37, 41, 50, 51 and 73. The lower appellate Court has come to the conclusion that the holdings of these khatians are not the original holdings but they are parcels of lands which comprise the original holding and other lands which have been added to these holdings within 20 years from the date of the suit and it has come to the conclusion that by reason of this circumstance the defendants have failed to establish any presumption in their favour under Section 50, Clause (3) of the Bengal Tenancy Act.
6. It has been urged before us that, having regard to the provisions of Clause (3) of Section 50, the operation of that section so far as it relates to land held by a raiyat, will not be affected by the fact of the land having been separated from other land which formed with it a single holding, or amalgamated with other land into one holding, the lower appellate Court ought at any rate to have raised the presumption with regard to the holdings as they existed before these amalgamations were made. We are unable to accede to this contention, for, in our view, the addition of other parcels to the original holding as well as the increase; in the rental having changed the incidents of the original holding admittedly a new holding was created which came into existence after the date of the Permanent Settlement. So there is no room for the presumption under Section 50 of Sub-section (3). We are supported in this view by a decision of this Court in the case of Raj Kumar Sarkar v. Faizuddi Tarafdar [1915] 22 C.L.J. 81.
7. In this view the only point raised before us fails and the appeal must be dismissed with costs two gold mohurs.
Duval, J.
8. I agree.
