P L D 1967 Dacca 199 (PLP)

On the basis of section 5 (5) of the said Act defendants claim that, since the area of lands held by them is much more than one hundred standard bighas, they would be presumed to be tenure‑holders in respect of the suit‑lands. If this contention is accepted, then it must be held that their interest in the suit‑lands is protected under the Revenue Sale Law. On the other hand, plaintiff has produced the settlement records which describe defendants as korfa‑tenants with occupancy right. It was urged on behalf of plaintiff that, if the settlement records are correct, it would prevail over the presumption in favour of defendants raised by the said section 5(5) of the Bengal Tenancy Act. Plaintiff claims that he is entitled to evict defendants who are under‑raiyats with occupancy right, but not at fixed rent. Learned District Judge came to a finding that Exh. A, which is a lease obtained by the predecessor of defendants in 1880, showed that defendants and their predecessor were in pos session of the disputed lands cultivating the same themselves. It has been held that this would. establish that defendants had an occupancy right. On this footing it was further held that the settlement records upon which plaintiff relied, could not be correct. It was, thus, held that defendants had proved that they had protected interest in the suit lands. The appeals were, therefore, allowed and the decrees passed by the learned Subordi nate Judge were modified to the extent that plaintiff's title to the suit‑lands was declared, but he was not allowed Khas possession thereof. Hence these appeals. At the hearing of these appeals we were taken through the judgments pronounced by the Courts below. It was argued on behalf of plaintiff appellant that, in the absence of satisfactory evidence in the case, the appeals must be decided on the point as to whether the presumption raised by subsection (5) of section 5 of the Bengal Tenancy Act would prevail over the provisions of section 103‑B of the 'said Act. Before we proceed to discuss this point, we may repeat that the suit‑lands being far in excess of one hundred standard bighas, defendants claim that they are tenure‑holders because of the presumption raised by subsection (5) of section

5. If they were deemed to be tenure‑holders in respect of the suit‑lands, then obviously their interest in the suit‑lands was protected under the Revenue Sale Law. But if they were under‑raiyats, their interest would not be protected. Our attention was drawn to the Irrelevant provisions of the Revenue Sale Law, which read thus: "

12. The purchaser of any tenure sold under the provisions of section 11 of this Act shall acquire it free from all encumbrances which may have been imposed upon it after its creation, or after the time of settlement, whichever may have last occurred, and shall be entitled to avoid and annul all under‑tenure, and forth with to eject all under‑tenants, with the following exemptions:‑ "Thirdly‑Tenures created or recognised by the settlement proceedings of any current temporary settlement as tenures bearing a rent which is fixed for the period of such settlement. . . . . . . . . . . Section 14 of the law reads thus: "Provided always that nothing hereinbefore contained shall be construed to entitle any such purchaser under section II of this Act to eject any raiyat having a right of occupancy at a fixed rent, or at a rent assessable according to fixed rules under the laws in force, or to enhance the rent of any such raiyat otherwise than in the manner prescribed by such laws or otherwise than as the former proprietor, irrespective of all engagements made since the time of settlement, may have been entitled to do." Plaintiff has relied upon the Settlement records which show that defendants were under‑raiyats in respect of the suit‑lands. Thus, if the settlement records are correct, plaintiff is entitled to succeed in the suits. No further evidence is available in these cases. The defendants are holders of more than one hundred standard bighas of land. Plaintiff, on the other hand, has produced a C. S. khatian, which shows that defendants are korfa‑raiyats, that is, under‑tenants. In this context,, we may quote the provisions of subsection (5) of section 103‑B of the Bengal Tenancy Act, which are as follows; "Every entry in record‑of‑rights finally published shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect." The trial Court has relied upon a decision of this Court in the case of Raja Meah v. Sunity Bhusan (55 C W N 3 D R 155) to hold that the presump tion raised by section 103‑B is stronger than that raised by section 5 (5). The facts of the aforesaid case are similar to those which arise here. We respectfully agree with the decision in the aforesaid case. We would, however, prefer to base our decision on the following grounds: Subsection (5) of section 5 merely raises a presumption in favour of defendants that their interest in the suit‑lands would be deemed to be a tenure. It is a mere presumption and nothing more than that, whereas the entries in the settlement records are, according to the provisions of subsection (5) of section 103‑B, evidence as to defendants being under‑raiyat in respect of the settled lands. Subsection (5) of section 103‑BI raises a presumption as to the correctness of the evidence adduced. If we now compare the provisions of the two sections it would appear that in one case there is mere presumption and, in the other, there is statutory evidence with an added presumption as to the correctness of such evidence. To us it appears that the questions is not so much that of a conflict of presump tions but that of competition between a presumption against evidence. Section 103‑B of the Bengal Tenancy Act makes the entries in the Settlement record admissible as evidence thereof, The presumption has reference to the correctness of such evidence, We, therefore, hold that in accordance with the provisions of subsection (5) of section 103B, it must be held that plaintiff' has successfully established, by evidence, that the interest Of the defendants in the suit‑lands is that of an under‑raiyat. There is no evidence whatsoever that the rent in respect thereof was fixed. Therefore, the interest of defendants cannot be protected under the Revenue Sale Law. The result, therefore, is that, these appeals are allowed. The judgment and decrees passed by the Appellate Court below are hereby set aside and these of the trial Court restored and affirmed. In the circumstances of the case, we make no order as to costs of these appeals. TALUKDAR, J.‑I agree. S. Q. Appeal allowed.