Full Judgment
B.B. Ghose, J.
1. This appeal turns upon the question whether the presumption under Section 50(2) arises in favour of the tenants. The Sub-section (2) runs thus: ' If it is proved in any suit or other proceeding under this Act that either a tenure-holder or raiyat and his predecessors-in- interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the institutino of the suit or proceeding it shall be presumed, until the contrary is shown, that they have held at that rent or rate of rent from the time of the Permanent Settlement.' It was found by the Court of first instance that the rate of rent was changed on more than one occasion. On appeal by the tenants the learned Special Judge held that there was no reliable evidence of any alteration in the rate of rent previous to the year 1292 B.S. The plaintiffs' contention was with reference to the circumstances after 1292 B.S. that the rate of rent was increased by one pice per kani and, therefore, the presumption in favour of the tenant has been rebutted. The learned Judge, in dealing with the question observes: ' If there was an addition of one pice per kani to the rent in 1292 it was not a substantial change. It was done, if it was done at all, in order that the landlord might say that the rent had not been always the same rather than in order to make a real change in the rent.' It is argued on behalf of the landlord appellants that if there was an alteration of the rate of rent, however small it might be, the presumption ought to be held to have been rebutted, and there is no provision under the law that the change should be a substantial change. It is con-tended on the other hand by the respondents relying upon some cases in the Weekly Reporter that if the change is not substantial the presumption of fixity of rent arises in favour of the tenant. I am of opinion that there is nothing in the section which requires that any change in the rate of rent should be substantial in order to rebut the presumption raised under Section 50 (2) of the Bengal Tenancy Act. It might very well be that the landlords did not want to alter the rent to any substantial extent so as to cause hardship to the tenants but, they wanted evidence for rebutting the presumption which the law raises in favour of the tenants, and in that view made a nominal alteration in the rent, and if this position was accepted by the tenant that would amount to a change in the rate of rent which would destroy the presumption of the fixty of rent from the time of the Permanent Settlement. The oases in the Weekly Reporter, in my opinion, do not lay down any principle which I am to follow. In this case, however, there is no dear finding whether the rate of rent was changed in 1292 by one pice per kani. I have quoted that portion of the judgment of the learned Judge and it seems to me that he held that assuming that there was a change as alleged by the plaintiffs the presumption in favour of the tenants should be held to have not been rebutted.
2. Under these circumstances it seems to me that I have no alternative but to send back the ease for the purpose of finding as to whether there has been a change in the rent or rate of rent payable by the tenants to which the tenants agreed. If the Court finds that there was such a change the presumption in favour of fixity of rent would not arise. If the finding is to the contrary then the tenants will have the benefit of the presumption. This case is therefore, sent back to the lower Appellate Court for decision in accordance with the observations made.
3. The costs will abide the result.
4. Two compromise petitions have been filed to-day by the appellant and some of the respondents under Section 147-A of the Bengal Tenancy Act. I am not satisfied that the enhancement agreed upon is fair and equitable. As I remand the main case for decision according to the observations made by me in my judgment these matters will be decided by the Court below along with the case of the other tenants. These two petitions will form part of the record and will be sent to the lower Appellate Court for disposal according to law.