P L D 1950 Dacca 37 (PLP)

The well‑established rule is that, wherever there is a special and general principle of law applicable to a certain matter, the special law will prevail. Azizul Islam and Khondkar Muhammad Hasan, for Appellants. Amarendra Mohan Mitra (with him Messrs. Dwijendra Narain Ghose and Prusun Chandra Ghose), for Respondents. This is an appeal by the tenant defendants Nos. 2, 3 and 4 and it arises out a suit for recovery of rent at a paddy rental of 2 bish and 6 kathi of paddy a year for a 2/3rds share of the plaintiffs for land alleged to have been held by the principle defendants who are the three sons of one Fedu Kazi deceased, the original tenant of the holding. The plaintiff's claim was for rent of four years, namely, from 1344 to 1347 B. S. The other persons who were the tenants in `respect of the 1/3rd of the tenancy were also impleaded is pro forma defendants, and another co‑sharer landlord who had a share in the 2/3rd share of rent claimed by ‑the plaintiffs was pro forma defendant No.

11. The suit was contested by only defendant No. 2, and his case was that the rate of rent was not what was claimed by the plaintiffs, but it was at 1 bish 16 kathis and 25 seers of paddy per year and the price of paddy was much lower. It was also pleaded on his behalf that the claim for rent for the years 1344 and 1345 was barred under section 148‑A, clause (9) of the Bengal Tenancy Act as in a previous suit for rent for those two years brought by the other 1/3rd co‑sharers landlords to which these plaintiffs were made parties had been decreed and these plaintiff, had not joined as co‑plaintiffs in that suit. The defendant also denied that the plaintiffs were entitled to claim rent for the 2/3rd of the tenancy and also pleaded payment of the rent in full. Reliance was placed in the trial Court on behalf of the plaintiffs on a kabuliyat, dated the 7th of Asar 1315 B. S. corresponding to June 1908 A. D., which was executed by the father of. these defendants, Fedu Kazi, in favour of the pre decessors‑in‑interest of the plaintiffs and pro forma defendant No. 11 in respect of the 2/3rd share of these lands reserving an annual rent in paddy as claimed in the plaint. The plaintiffs relied on this document as showing that the 2/3rd share constituted an independent tenancy, and also in support of the rate of rent claimed by them. They also relied on a rent decree obtained by the plaintiffs against these defendants' dated 30th August 1933, which was passed ex parte in their favour, but was put into execution and a sum of Rs. 100 was realised by execution from these defendants. The defendant relied on the Record of Rights, Exhibit B, which was finally published on 27th May 1926, and some rent decrees, Exhibits C and D, which related to the remaining 1/3rd share of the lands held under another set of landlords for the purpose of showing that if the rent was calculated on the basis of the rent decreed for the 1/3rd in than suit, that would support the defence case as to the rate of rent. The learned Munsif held that the 2/3rd share claimed by the plaintiffs formed an independent tenancy and the landlords of the remaining 1/3rd share had no right to this 2/3rd share. He also held that as defendant No. 11 did not join in the suit, the plaintiffs alone were entitled to maintain the suit for the entire 2/3rd share. In coming to this latter finding, he was relying on section 45 of the Contract Act and on the Privy Council ruling reported in the case of Monghibai v. Cooverji Umersey A I R (26) 1939 P C

170. I must say‑the learned Munsif was in error in coming to this finding. The Privy Council case was a case on the general law and related to partnership and the plaintiff's dues on a joint promissory note. The present case is one, to which apart from the general law, the special provisions of section 141‑A of the Bengal Tenancy Act are applicable and the well established rule is that wherever there is a special and general principle of law applicable to a certain matter the special law will prevail. But as this finding was not challenged by defendant No. 11 or any other defendant at any stage, it is not necessary to disturb it. The learned Munsif found for‑the defendants on the question of the rate of rent, but accepted the landlords' claim as to the price of paddy and decreed the suit for rent for all the four years against the principal defendants. Towards the end of the trial the defendant No. 1, brother of defendant No. 2, filed an application for a compromise as between him and the plaintiffs accepting the plaintiff's claim both on the question of the rate of rent as well as the price of paddy. The learned Munsif, after making certain allowances for payment made, passed a decree for rent on the basis of the aforesaid findings and he also rejected the petition of defendant No.

1. So far as defendant No. 11's right to 'rent is concerned I do not find anything in its support in the evidence but the plaintiff's in the plaint on the other hand have claimed a decree for the entire rent, and the decree of the learned Munsif was in their favour on this point. The plaintiffs, however, appealed against the judgment and decree of the learned Munsif on the question of the rate of rent and the defendant No. 2 filed a cross‑objection only in respect of the value of paddy and paid ad valorem Court‑fees on that alone. Although at the time of argument before the lower Appellate Court the question of the rate of rent and price of paddy was raised) no ground was taken against the plaintiffs' claim to rent for the years 1344 and 1345, which in the written statement was alleged to be barred under section 148‑A, clause 9 of the Bengal Tenancy Act, and no Court‑fee was paid for the same. The learned Subordinate judge, after reviewing the entire evidence in the case, both oral and documentary, came to the conclusion that the rate of rent was claimed in the plaint, and the value of the paddy as decreed by the learned Munsiff was correct. He also ordered the compromise by defendant No. 1 to be recorded, and decreed the plaintiffs' claim in full as regards the rate of rent and the value of paddy. Against the decision of the learned Subordinate judge the defendant Nos. 2, 3 and 4 have come up in second appeal to this Court. It was urged in support of the appeal that the claim for the years 1344‑1345 was barred under section 148 (A) of the Bengal Tenancy Act. This objection of the defendants was set at rest by the finding of the learned Munsiff that the 2/3rd share claimed by the landlords in this suit formed an independent tenancy and the other co sharer landlords had no interest in it. The defendants not having raised this point in their cross‑objection, are not entitled to raise it before this Court, specially when this is concluded by the findings of fact. The next point raised was that the suit was not maintainable for defect of parties as the plaintiffs owned only 2/3rd of the tenancy while the 1/3rd was held by other co‑sharer landlords who, though made parties, were struck out by the trial Court. This objection is not tenable again, in view of the findings of the trial Court that this was an independent tenancy and not challenged on appeal before the learned Subordinate Judge. The third and most important point raised in the appeal, was that the learned Subordinate judge was wrong in not attaching any importance to the presumption of the correctness of the Record of Rights, which he disregarded and that he was wrong in holding that there was a presumption in favour of the plaintiffs under section 51 of the Bengal Tenancy Act. Reliance was placed in support of this contention in the case of Mukunda Chandra Sarma v. Arpan Ali 2 C W N 47, in which it is laid down. " that the mere fact that a tenant some time ago gave a kabuliyat for a limited period at a particular rate of rent is not sufficient in itself to throw upon the defendant the entire burden of proving what the present rent is without any evidence on the part of the landlords that the rent specified in the kabuliyat had ever been realized from him." This contention would have some force if the landlord in the present case had slolely relied on the kabuliyat of 1315, namely Ex. 1, but he has proved much more than this, namely, that do the basis of this kabuliyat even after a lapse of 25 years he had obtained a rent decree, and in execution of that decree recovered a sum of Rs. 100 from the defendants on the foot of that decree. If this was not the case, I would certainly have relied on the Record of Rights and given full weight to the presumption attaching to it under section 103 (b), subsection (5) of the Bengal Tenancy Act. But the presumption raised by the Record of Rights has been impaired by the later presumption raised under section 51, by the decree, Ex. 2. which was passed 7 years after the publication of the Record of Rights. The decision in a previous rent suit as to the rate of rent, artliough it does not operate as res judicata in a suit for rent for subsequent years, does give rise to a presumption under section 51 of the Bengal Tenancy Act, that the rent for subsequent years remained the same. This view was held in the case of Maharani Beni Parshad Koeri v. Raj Kumar Chowbey 6 C W N

589. In the case, of Manmatha Haldar and another v. Grisih Chandra Roy A I R (21) 1934 Cal. 707. it was held that the rule of evidence was in favour of presuming the continuity of things shown to exist at a particular date ; there is no rule of evidence by which one can presume backwards ; and that the Record of Rights was presumptive evidence of the state of things as they existed at the time of the final publication and not at the date when the cause of action arose. In my view, when there are two conflicting presumptions rising with regard to the same matter, the later in date should prevail. The presumption under section 51 of the Act, raised by Ex. 2, in favour of, the plaintiffs, therefore, prevails over the earlier Record of Rights, Ex. B. In the above view of the case, I see no reason to interfere with, the judgment and decree of the lower Appellate Court which I affirm. The appeal is accordingly dismissed. In the circumstances of the case I make no order as to costs. K.M.A./A.H. Appeal dismissed.