AKBAR ALI KHAN Vs. SYED ABBAS

JUDGEMENT

(1.) These appeals are preferred by the tenants-defendants. The landlord-respondent instituted cases against them under Section 105 of the Tenancy Act asking that their rent should be increased under Sections 31, 82, 33 and 52. When the three cases came on for trial the landlord withdrew his claims under Sections 31 and 52, and gave no evidence regarding improvements. The question that remained between the parties was whether the rents were liable to enhancements, for the tenants asserted that they held at fixed rates. The learned Special Judge has found that they did not hold at fixed rates, and has upheld the enhancement allowed by the Assistant Settlement Officer. The defendants prefer these second appeals. A preliminary objection is raised on behalf of the landlord-respondent that no appeal lies, but having regard to the cases of Pirthi Chand Lal Chowdhury v. Basarat Ali 3 Ind. Cas. 449; 10 C.L.J. 343; 13 C.W.N. 1149; 37 C. 30 and Bisseswar Ray v. Rajendra Kumar Singha 25 Ind. Cas. 228; 18 C.W.N. 949, we think that an appeal does lie on the question as to the incidents of the holding.

(2.) The finding of the lower Courts is that the tenants-defendants are ordinary occupancy raiyats, and not, as they allege, raiyats holding at fixed rates. It was conceded that they were entitled to the presumption arising under Section 50(2) of the Tenancy Act. The learned Special Judge, however, held that the presumption was rebutted by a bandobast robkar and its connected papers of the year 1841; in these papers all the lands in the villages where the holdings are situated are described as bhaoli. The inference is that the holdings in suit were bhaoli, and the landlord argues that the conversion from bhaoli to nagdi must have taken place since 1841, and that it must be a change in the rent, of such a nature as to rebut the presumption under Section 50(2).

(3.) The tenants-defendants rely upon the case of Miterjeet Singh v. Toondun Singh 12 W.R. 14, where the learned Judges held that the fixing of a cash rent in lieu of what was paid in kind was "tantamount to saying that that money rate of rent represented and was equivalent to what had been paid before in another way." We may remark that there are other cases in which a contrary view was taken, but it is not necessary for us to consider them. It appears to us that the present appeals must be distinguished from Miterjeet Singh s case 12 W.R. 14 in this way. The tenants here produced rent receipts for cash-rents and said that they had been always paying rent at the same rate: that amounts to an assertion that they had always paid a cash-rent, although, it is true, they do not seem to make such a statement in so many words. This assertion is disproved by the fact that in 1841 the lands were held on the bhaoli system, and, therefore, at some date since 1841 there was a change. Ordinarily conversion from bhaoli to nagdi is a very great change, and about this change the tenants in these cases have nothing to; say. In Miterjeet Singh s case 12 W.R. 14, however, the change was by written agreement, and the money rent was accepted in lieu of the produce-rent. This difference we think a substantial one, and it prevents us from applying the principle laid down in Miterjeet Singh s case 12 W.R. 14 to the present cases.