P L D 1954 Dacca 160 (PLP)

GUHA, J.‑

This second appeal by the defendants against the decision of the learned Subordinate Judge, 1st Court, Pabna, reversing a decision of the learned Munsif, 2nd Court, Serajganj, arises out of a suit for recovery of arrear of ground rent of land within the Serajganj Municipality at the rate of Rs. 42 per annum for the years from 1349 to 1351 B. S. The contest of the defendants was of twofold character, firstly, that there was no relationship of landlord and tenant between the parties, and secondly, that the rent was Rs. 24 per annum and not at Rs. 3‑8 per mensem as claimed by the plaintiff. Both the Courts below have concurrently found that the plaintiff has acquired interest by purchase in a money execution sale and that question is not in controversy in this Court. The only question in the appeal is what is the annual ground rent of the suit land. The plaintiff claims that the original rent was Rs. 3 per month but it has been enhanced to Rs. 3‑8 from 1346 B.S., and so the defendants are liable to pay at the rate of Rs. 42 per annum for the period in suit, while the defence is that the annual rent is Rs. 24 as shown in the record‑of‑rights (Exh. A) finally published in or about the year 1928 that no rent at that rate was due. The trial Court has held that the record‑of‑rights (Exh. 1) has the same statutory presumption as arises under section 103B of the Bengal Tenancy Act, and that the plaintiff has not been able to rebut that presumption by the Hishabs (Exh. 1 series) and Jama‑kharas (Exh. 2 series) for the years 1344 to .1351 B.S. or by the oral evidence of his 4 witnesses ; and in that view the learned Munsif decreed the suit in part at the rate of‑Rs. 24 per annum with damages at six and a quarter per cent. with proportionate costs: On appeal by the plaintiff and cross‑objection by the defendants that having regard to the amount paid by them in the past there should not have been any decree on the basis of the reduced rent, the learned Subordinate Judge has dismissed the cross‑objection and allowed the appeal and decreed the plaintiffs suit in full. The learned Subordinate judge has held that the record‑of‑rights (Exh. A) has not the statutory presumption as arises in respect of any entry in a record‑of‑rights of agricultural land and that it was a mere piece of evidence and in that view the learned Subordinate Judge assessed the weight of evidence on each side and came to a conclusion in plaintiff's favour relying on documentary and oral evidence adduced on his behalf. In this second appeal by the. defendant the learned Advocate argues two points, firstly, that the learned Sub ordinate Judge has erred in law in holding that the statutory presumption as arises under section 103-B of the Bengal Tenancy Act does not arise in respect of the record‑of‑rights (Exh. A), and, secondly, that the judgment in appeal is not a proper judgment of reversal. The first contention of Mr. Bhattacharjee requires consideration, because judicial opinions do not speak in one voice. As I am informed that there is no reported decision touching this point, I shall give my decision on the point here reviewing the relevant authorities. Here in this case the suit land is within the Serajganj Municipality and it was leased out to the defendants for a purpose other than agri culture or horticulture and that the finally published record of‑rights in or about 1928 showed that the annual rent was Rs. 24 per annum. It is an admitted fact and at least beyond any controversy here that this record‑of‑rights (Exh. A) was prepared and finally published before the amending and consolidating Bengal Tenancy Act (IV of 1928) came into force from the 21st February 1929, and that the relevant record‑of‑rights was not prepared on the basis of the amending Act after necessary order to that effect was pasted by the Provincial Government as contemplated under the provisions of section 101 of the Bengal Tenancy Act, either the original or the amended one. The real controversy is whether the plaintiff is right in saying that the same statutory presumption as arises under section 103B of the Bengal Tenancy Act in respect of agricultural or horticultural lands does not arise in respect of the Khatian entry (Exh. A) as in this case of land within a Mofussil Municipality, or whether the defendants are right in their assertion that it arises. The learned Subordinate judge has decided in favour of the plaintiff's contention relying on two decisions of the Division Bench of the Calcutta High Court in the case of Raja Sasi Kanta Acharya Bahadur 'v. Sandhya Moni Dashya (26 C W N 483.) ; and in the case of Rokimjan v. Amar Krishna Choudhury (78 Ind. Cases 169‑A I R 1925 Cal. 404.), in pre ference to the decision of Biswas J. in Rathindra Narayan Das v. Rai Cunendra Krishna Roy Bahadur (48 C W N 153.). The learned Sub ordinate Judge says: "But if the preponderating judicial opinion to the contrary be taken into consideration, it cannot be said that his Lordship sitting as a single judge was laying down a different rule for universal application. Under the existing position of judicial opinion it would be more proper to regard the apparently contrary decision at page 153 of 48 C W N (supra) as intended for the special facts of the case that was actually decided. Consequently I hold in conclusion that the khatian for the land in suit had not the statutory presumption of section 103 of the Bengal Tenancy. Act but was admissible as good evidence under section 114 of the Evidence Act . To invoke the amendment of 1928 in a retrospective way and to claim statutory presumption of section 103 of the Bengal Tenancy Act for the Matian prepared prior to 1928 would thus be hardly justifiable". On the face of this decision it cannot be said that the learned Subordinate judge is not right in arriving at the above conclusion. But the learned Advocate for the appellant argues that there the learned Subordinate Judge has, gone wrong. We shall have to examine how far this contention of the learned Advocate for the appellant is justified. The old subsection (1) of section 101 of the Bengal Tenancy Act has been amended by substituting the words "all lands" in place of the words "the lands" and adding a proviso to the following effect The provisions of sections 104 to 105A, inclusive 109C, 109D, 110, 112 and 113 shall not apply in respect of any lands which are held by a non‑agriculturist and are not used for purposes connected with agriculture or horticul ture". Again old section 102 has been amended by adding a proviso to the end of the section as Provided that, if lands are not used for purposes con nected with agriculture or horticulture, it shall be sufficient to record that fact together with the prescribed particulars relating to the occupant, the landlord and the tenancy". Now section 101 (1) enacts that the Provincial Government may, in any case, if it thinks fit, make an order directing that a survey be made and a record‑of‑rights prepared by a Revenue Officer, in respect of the lands under the old Act and of "all lands" under the amending Act in any local area, estate or tenure or part thereof. Thus it is manifestly clear that under the amending Act by use of the words "all lands" in place of "the lands" all the provisions in the Act applying to agricultural and horticultural lands have not been extended to non‑agri cultural lands like lands in Municipal area leased out for purposes other than agriculture or horticulture. Again it is also clear from section 101 (1) that the Government in a proper case under the amending Act may make an order for survey and preparation of record‑of‑rights in respect of lands outside the scope of the Bengal Tenancy Act, and such a record‑of‑rights, if finally published after the amending Act has come into force, may have the same statutory presump tion in respect of entries made by the Revenue Officer in respect of lands outside the scope of the Act as arises in respect of agricultural or horticultural lands under section 103B (5) of the Bengal Tenancy Act. See clogendra Krishna Banerji v. Sm. Subashini Dassi (45 C W N 590‑74 C L J 145 (161)), where it has been held that where the record‑of‑rights was finally published in 1931, the statutory presumption under section, 103B (5) would arise; and in that case it was also J held that in any event it would be a strong piece of evidence. I have already indicated above that all the provisions of Chapter X of the Bengal Tenancy Act do not apply to non agricultural land as are applicable to lands which are used for agricultural or horticultural purposes in view of the proviso to section 101 (1) of the Bengal Tenancy Act as amended. The proviso to section 102 (provisions whereof are not mandatory) further enacts that in case of such lands it will be sufficient for the Revenue Officer to record only, (a) that the land is not used for purposes connected with agriculture or horticulture, and (b) the prescribed particulars relating to the occupant, the landlord and the tenancy. In this particular matter, it is no‑body's case that a survey has been made and a record‑of‑rights was prepared by virtue of a notifi cation by the Provincial Government after the amending Act came into force. Therefore, it is legitimate and reason able to hold that the provisions of the old Act would apply and that it is within my province to follow the interpretation of the words "the lands" in the old section as meaning only agricultural or horticultural lands and to follow the decision under the old Act of the Calcutta and Patna High Courts to the effect that the entry in a khatian as regards non‑agricultural lands has no such presumptive value as contemplated under section 103B (5) of the Bengal Tenancy Act in respect of agricultural lands. There is no scope in the present case to apply the provisions of the amending Act for the reasons which I have already indicated. In that view, the provisions of section 103 (5) of the Bengal Tenancy Act to the effect that every entry in a finally published record‑of‑rights shall be evidence of the matter referred to in such entry and shall be presumed to be correct unless it is proved by evidence to be incorrect, are not attracted in this particular case, because there has been no such order for survey and prepara tion of the record‑of‑rights under the amending Act and on the basis whereof the present record‑of‑rights (Exh. A) was prepared. If we then refer to the relevant cases we find that the above interpretation is correct on principle. The first case is of Ram Das Mukherjee and others v. Biprodas Pal Choudhury (19 C W N 35.), but as has been correctly pointed out by the learned Subordinate Judge it has no application here, because there the question arose only for settlement of fair rent under section 105 by a Revenue Officer in respect of a non‑agri cultural homestead land and it was held that the Revenue officer had no jurisdiction to do so. Then in Biprodas Pal Choudhury v. Azam Ostagar (I L R 46 Cal. 441.), in a case under section 105 of the Bengal Tenancy Act regarding settlement of rent of non‑agricultural lands in a Mofassil Municipality Woodroffe and Srnither, JJ held that the legislature contemplated only three classes of tenants a tenure‑holder, a raiyat and an under‑raiyat as holding lands within the meaning of the Bengal Tenancy Act and in its general scope of the Act it is the law of agricultural landlords and tenants. On the basis of that decision it was argued in the case of Raja Sasi Kanta Achariya Bahadur v. Sandhya Moni Dasya (supra), that if an entry is made in the record‑of‑rights with regard to land which do not come within the scope of the Bengal Tenancy Act no presumption arises under section 103B of the Bengal Tenancy Act. Sanderson C. J. (with whom Chotzner, J, concurred) held at page 485 as follows I am not prepared to go so far as to say that in this case no presumption arose from the entry in the record‑of -rights, but I am prepared to say that the presumption cannot be of such great weight as would be the case of the entry were with regard to matters which are rightly and properly included in the record‑of‑rights . That decision was followed by Newbould and B. B. Ghose, JJ. in the case of Chand Mia v. Tooka Mia (A I R 1924 Cal. 667) Following the decision of Sanderson, C. J. in the case of Rokimian v. Amar Krishna Choudhry (supra), Page, J. (as he then was and with whom Suhrawardi, J. agreed held that an entry in the record‑of‑rights was admissible in evidence as corro boration of the evidence given by the party in whose favour the entry was, and the weight to be attached to that corroborative evidence was a matter which with all other circumstances in the case; the Court was entitled to take into consideration before deciding what was in fact the rate of the rent of the premises which had been fixed. The Patna High Court has held in the case of Brindaban Prasad v. Gopal Saran Narayan Singh (A I R 1928 Pat. 36), that although, strictly speaking, the presumption under section 103B is not applicable to a non‑agricultural land to the extent to which it is applicable to agricultural land still such entry raises some presumption with regard to the fact recorded in it. Again it has been held that the record‑of‑rights is an official document and is admissible under section 35 of the Evidence Act. See Rai Bhaiya Dirgaj Dqo Bahadur v. Beni Mahto and others (22 C W N 439 (PC)), and Fazlur Rahman Bhuiya v. Golam Kader Mia (A I R 1926 Cal. 862‑30 C W N 689). Tested in that light we shall have to treat the entry only as corroborative evidence. As has been held by Page, J., in the case of Rokimjan (supra), this entry in Exh. A. in this case should be taken as a corroborative piece of evidence to the other evidence adduced on behalf of the defendants to come to a decision in the facts and circumstances of the case. Therefore, it will not be our of place to mention here that the learned Subordinate Judge in his decision in the appeal has correctly appreciated the position and has come to a correct decision on facts. The learned Subordinate judge has not followed the decision in the case of Rathindra Narayan Das v. Rai Gunendra Krishna Roy Bahadur (supra), and in my opinion, correctly. In that case Biswas, J. proceeded to observe at pages 155 to 156 as follows As the record‑of‑rights here was finally published in the year 1916, the matter will have to be considered with reference to the law as it then stood . Then the learned judge quotes the relevant provisions in the amending Act of 1928 and observes : . It seems to me, therefore, that the question whether the word "land" occurring in any part of the Bengal Tenancy Act should be limited only to agricultural or horticultural lands must depend on the subject or context, and the decisions cited on behalf of the appellant must in my opinion be read in this light. They afford no warrant for the view that land not used for agricultural or horticultural purposes is excluded from the purview of the Act for all purposes. "I do not think there is anything in Chapter X, even as it stood before 1928, which went to show that the jurisdic tion of a Revenue Officer to prepare a record‑of‑rights was limited only to lands used for agricultural or horti cultural purposes. On the other hand, the words "in any local area, estate or tenure, or part thereof" after the words the land" occurring in section 101 (1) would seem to militate against any such restricted interpretation : it may be that the words "the lands" were altered in 1928 to "all lands" but this was only meant to remove an ambiguity, and not to alter the law. I must consequently overrule Mr. Chakravarti's con tention as regards the validity of the disputed entries in the record‑of‑rights, and hold that the entries were admissible in evidence and did attract the statutory presumption under section 103E . With great respect to that eminent Judge,. I must say, I am unable to follow his interpretation of the section. Obviously in that case the proviso to the amending. Act, 1928, was not brought to His Lordships' attention. If that was done then the learned judge would have found that simply by the use of the words "all lands" by the amending and con solidating Act all provisions applying to agricultural and horticultural lands were not made applicable by the amending Act to lands in Municipal area. Moreover, the amending Act did not authorise a Revenue Officer to make all entries as enumerated in section 102 of the Bengal Tenancy Act, to be included in the record‑of‑rights. Those and other considerations will lead one to think and hold that the amending Act did not use the words "all lands" in place of the words "the lands" for the purpose of removing an ambi guity. In my opinion, the amending Act did not remove an ambiguity only, but really altered the law and in that respect I respectfully disagree with the view, which was taken by Biswas, J. The interpretation that has been given by Biswas, J. in the latter decision does not seem to be correct. Here there is no question of removing an ambiguity in the old Act, and so, it is not permissible to interpret the words "the lands" as "all lands". The words in a legislation must have the ordinary meaning. See Reg v. Commissioner : for Special Purposes of the Income Tax ((1888) 20 Q B D 296 (309)) and Victoria City v. Bishop of Vancouver Island ((1921) 2 App. Cases 384). The underlying principle is that the meaning and intention of the Statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be enter tained by the Court as to what is just or expedient. When once the meaning is (plain as is the case here) it is not within the province of a Court to question its wisdom of its policy. See Maxwell's Interpretation of Statute, 9th Edition, pages 4 and

7. The duty of the Court is not to make the law reasonable but to expound it as it stands according to the real sense of the word. Where there are general words in a later Act capable of reasonable and sensible application without extending them to subject specially dealt with by an earlier legislation, it is not to be held that such earlier and special legislation is either indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so. See May. Seward v. The owner of the "Vera Craz" ((1884) 10 App. Cases 59 (68).). Therefore, considering this matter from its various aspects, I am not prepared to follow the interpretation given in the decision of Biswas, J., but am of opinion that in view of the earlier decisions the record‑of‑rights, Exh. A, could not have that statutory presumption as is available under section 103B (5) of the Bengal Tenancy Act, but would be a strong piece of evidence and that evidence would only corroborate other evidence. Again it is true that a presumption is a part of the adjective law and not being a substantive law may have A retrospective effect, but to make a survey effective there must be a notification by the Government and no such notifi cation would have been possible before the amending Act was passed in 1928. Right of the Provincial Government in this regard is a substantial right and so, no question of retrospectivity arose prior to the year. 1928, Therefore, it is not possible to invoke the aid of retrospectivity for claiming statutory presumption under section 103B of the Bengal Tenancy Act for the khatian in question that was finally published before the amending Act of 19q

8. Moreover, an amending and consolidating Act can hardly have any 'B , retrospective effect unless it is specifically provided for. That is all about the first question of Mr. Bhattacharjee for the appellants, and I am of opinion that the learned Sub ordinate Judge has been right in his conclusion and the first contention of Mr. Bhattacharjee must be rejected. As regards the second contention, Mr. Bhattacharjee contends that the judgment of the appellate Court is not a proper judgment of reversal. This contention also must share the same fate as his first contention. The trial Court was of opinion that Exh. A would have the statutory presumption under section 103B of the Bengal Tenancy Act and he went into the oral and documentary evidence on behalf of the plaintiff and came to the conclusion that that evidence was not sufficient to rebut the presumption arising under Exh. A. But what the learned Subordinate Judge has done is this that he found that Exh. A would riot have that statutory presumption as arises under section 103B but that it was a strong piece of evidence in favour of the defendants. He also took into consideration the other evidence adduced on behalf of the defendants and also on behalf of the plaintiff including the Hishabs, Exh. 1 series and Jama‑khatas, Exh. 2 series and the oral evidence on behalf of the plaintiff and then came to the conclusion that the plaintiff's evidence was of a satisfactory nature which should be relied on. That being the position, it cannot be said that the learned Subordinate judge as the first appellate Court committed any error of law, which requires my interference in second appeal. There fore the second contention also fails. No other contention having been raised, the result is that this appeal fails and is accordingly dismissed with costs. A. H. Appeal dismissed.