PLD 1963 Dacca 338 (PLP)

5. The learned Subordinate Judge dismissed the suit holding that the under‑raiyati was transferable as under‑raiyati acquired right of occupancy by custom and the defendants acquired the interest of the under‑raiyats by purchase. The claim for damages was also dismissed on the ground that notice in the prescribed manner as required under section 155 of the Bengal Tenancy Act was not served on the defendants.

6. On appeal, the learned District Judge reversed the decision of the trial Court and decreed the suit for khas posses sion holding that it was not proved that by custom under‑ratyats of the village acquired right of occupancy, or that under‑raiyats had any right of transfer by custom, that the entry in the revisional record of rights regarding the disputed holding as under‑raiyati with right of occupancy was wrong, that the disputed under‑raiyati was not transferable and that the defen dants by purchase from the under‑raiyats acquired no interest. Hence this appeal.

7. The learned District Judge dismissed the claim for com pensation on the ground that there was no sufficient evidence to determine the measure of compensation and that it was not established that the character of the tank was changed.

8. Mr. Khondkar, learned, Advocate for the appellants has contended that as the disputed property is noabad land, the presumption arising out of the R. S. record‑of‑rights prepared under Part 11 of Chapter X of the Bengal Tenancy Act is unrepeatable and that the learned District Judge erred in law in holding that the presumption was rebutted by the C. S. records under Part 11 of Chapter X of the Bengal Tenancy Act; there is unrepeatable presumption under section 104‑J of the Bengal Tenancy Act that the rent recorded has been correctly settled. But other entries in the record‑of‑rights do not raise such a presumption. This view is supported by the case of Habibullah alias Rashid Meah v. Khatim Ahmed and others (P L D 1960 Dacca 136). The contention that the presumption arising from the khatian that under raiyats acquired right of company by custom is not rebut table cannot be accepted.

9. The disputed tank has been in the R. S. khatian 2578 which has been marked as Exhibit C (2). In the remark column of the khatian, it is described as korfa with occupancy right, according to custom from 1938. It has been contended that in view of the entry in the record‑of‑rights, it must be presumed that the under‑raiyats acquired right of occupancy in the disputed tank by custom. In support of this contention, reference has been made to the case of Abdul Hamid and others v. Eakub Ali Pandit and another (33 C W N 1193). In that case, it has been laid down that when an under‑raiyat is recorded in the record of rights as having a right of occupancy, it must be presumed that that right occupancy has been acquired by him by virtue of a custom. Reference has also been made to the case of Girish Chandra Dutta and others v. Girish Chandra Mali and another (54 C L J 68). In that case it has been held that a decree under section 66 of the Bengal Tenancy Act is not sufficient to displace the effect of the presumption arising from the entry in the record‑of‑rights that the under‑raiyat has acquired a right of occupancy by custom. Undoubtedly the record‑of -rights relating to the disputed property raised the presumption that the under‑raiyats acquired right of occupancy by custom, but this presumption has been rebutted. Defendants produced two other records‑of rights in which also there is‑the description that the under‑raiyat has acquired right of occupancy by custom in the village. Defendants also examined some witnesses to show that under‑raiyats in the village could acquire right by, custom. Plaintiffs produced 17 records‑of‑rights in which there is mention of under‑raiyat. In those records, there is no mention that under raiyats acquired occupancy right by custom. One of the recorded under‑raiyats, namely, P. W. 2 Bishnu Charan De was examined on the side of the plaintiffs. His evidence is that they had only korfa right in the holding and that they had no other right. The learned Subordinate Judge disbelieved him but the learned District Judge believed his evidence. Plaintiff also produced the C. S. record which was finally published in 1898. In the C. S. record there is mere mention of the korfa. The evidence is that the under‑raiyati was created two years before the C. S. copera tions. Defendants produced the said certificate showing purchase of the under‑raiyati by Dhirendra Nath Sen in the Court sale. Three rent receipts Exh. A to. A (2) showing payment of rent by Dhirendra Nath Sen were also produced. The kabala Exh. B by which defendants purchased the holding from Dhirendra Nath Sen and his brother was also proved. But in these documents, there is no mention of korfa with right of occupancy. The oral and documentary evidence produced in the case is sufficient to rebut the presumption arising from the R. S. record‑of‑rights.

10. It has been contended that the C. S. record and the R. S. records produced on the side of the plaintiffs would not be sufficient to rebut the presumption which arises from the R. S. record relating to the disputed property. But besides C. S. and R. S. records, there are the evidence of one of the recorded under raiyats and also the kabala of the defendants.

11. The lower Appellate Court on a consideration of the oral and documentary evidence on both sides came to the conclusion that the presumption created by the R. S. record‑of rights has been rebuted. His finding is as follows: "The evidence regarding the custom on the side of the defendants is most unsatisfactory and cannot be accepted. On the side of the plaintiffs there is overwhelming evidence to show that there was no such custom. The C. S, khatians and the other documents placed before Court sufficiently rebut the presumption of the R. S. khatians. In my opinion, the entry of occupancy right in the R. S. khatians is evidently a mistake and cannot be given effect to. I am not satisfied that in the locality there is any custom that korfa tenancy is transferable or that the defendants have got any occupancy right in the same." The finding that the presumption created by the R. S. record‑of- rights has been rebuted is a finding of fact and cannot be challenged in the second appeal. This view is supported by the case of Aminuddin Biswas v. Miajan Biswas and others (P L D 1960 Dacca 429).

12. Mr. Khondkar has contended that this finding is not immune from challenge as the lower Appellate Court relied on C. S. khatian and on some other documents about which no mention was made, for holding that the presumption of the R. S. record was rebutted. The question, whether this finding can be, or cannot be challenged in this Court, is of no importance as I have already discussed on this point and I have come to the con clusion that the presumption created by the R. S. record has been rebutted by the evidence adduced.

13. Mr. Khondkar has contended that the question regarding the nature of tenancy is a question of law and in a second appeal this Court can enter into the question whether dunder raiyats acquired right of occupancy by custom. In support of this question, reference has been made to the case of Sulatu Das v. Jadu Nath Das and others (8 C W N 774). In that case, the question for consideration was whether the tenants were merely tenants‑at‑will or whether they were yearly tenants, and it was held that this was a question of law which could be dealt with on second appeal. In that case, no question of acquisition of any right by custom was raised. In the present case, the lower Appel late Court has made the finding that there was no custom it the village by which under‑raiyat could acquire right of occupancy. This is a finding of fact and cannot be challenged in this Court. j Even if it be held that this finding is erroneous yet in second appeal there is no jurisdiction to question this finding however gross error might be. [See Wali Muhammad and others v. Muhammad Baksh and others (57 I A 36)].

14. The mere fact that an under‑raiyat has been in posses sion of the land for any number of years is not sufficient in law to) establish a custom of an underraiyat's acquiring occupancy rights in village. This view is supported by the case of Lal Chakouri Lail v. Deo Chad Mahton and others (90 I C 273).

15. It has been further contended that the lower Appellate Court erred in law in giving a decree on the new ground that as the under‑raiyati was not transferable, plaintiffs were entitled to khas possession on its transfer by the under‑raiyats to the defen dants. Mr. Khondkar has contended that no such case was made in the plaint. But the plaint shows that ejectment was prayed on the ground that defendants by silting up a portion of the tank rendered it unfit for the purposes of tenancy and also that defendants were trespassers being purchasers of an under‑raiyati holding which was not transferable. In paragraphs 1 and 3 of the plaint, it has been stated that the under‑raiyuti was not trans ferable and that defendants were trespassers. The learned Judge has accepted the case that the under‑raiyati holding was not transferable and that on its transfer plaintiffs landlords are entitled to khas possession on ejectment of defendants. In the circum stances, it cannot be said that the Appellate Court made a new case.

16. It has been further contended that transfer of the under‑raiyati would be illegal, if made without consent of the landlords and that as in the plaint there is no mention that the landlords did not consent, it is to be held that transfer was made with the consent of the landlords. In this connection, my attention was drawn to the statement of P. W. 4 to the effect that the defendants were treated as tenants. Attention was also drawn to the notices issued to the defendants for damages. The contention that the transfer was legal because it was made with the consent of the landlords cannot be accepted, as no such plea was taken in the written statement. The simple case in the written statement was that the transfer was legal because the under‑raivats acquired right of occupancy by custom and could transfer the holding.

17. There is no ground for interference with the decision of the lower Appellate Court. In the result, the appeal is dismissed with costs and the judgment and decree passed by the Appellate Court are hereby affirmed. S. B./A. H. Appeal dismissed.