v.

SAHU.

1870 issues; and if it appeared that in this case the issue of holding HARRAK SING at unvaried rents from the time of the Permanent Settlement TULSI RAM properly arose, it would be our duty to remand the case that such issue might be framed and tried; but it seems to me quite impossible, from the tenor of the defendants' title and from their oral examination, to collect any such allegation as that theirs was a holding which had commenced previously to the Permanent Settlement, and had continued from that time to the present day at unchanged rates.

The defendants merely state that the land has come down to them from their father, by whom it was first brought into cultivation; and I am bound to say that this statement is distinctly confirmed by the testimony of one of the plaintiff's witnesses. I look upon it, I confess, as a very serious matter to decide between landlord and tenant, not merely that the landlord is not entitled to the particular rent which he claims in the suit before the Court, but that the ryot is exempt from any enhancement of his rent for all time to come; and I feel that nothing justifies the Court in carrying exemption one step beyond the limits which the law has provided. For these reasons I think that there is no valid ground of special appeal in the case before us; and that as far as those grounds are concerned, the decision of the Court below ought to be affirmed. I think that, under the circumstances of this case, I should not say anything on the subject of costs.

MITTER, J.—I am extremely sorry to differ from my learned colleague. The Deputy Collector was wrong, in my opinion, in refusing to lay down an issue upon the point as to whether or not the tenure held by the defendants was protected from enhancement by the provisions of section 3 of Act X of 1859. There are no such things as pleadings, technically so called, required by that Act; and it is the duty of the Court itself to lay down all the issues essential to the right determination of the cause, the facts in dispute between the parties being previously ascertained by examining them or their duly authorized agents (1).

(1) See ss. 64 and 65, Act X of 1859.

v.

SAHU.

In the present case, however, it appears that the defendants had 1870 put in a written statement, and the third paragraph of this writ- HARRAK SING ten statement distinctly raises the plea that their tenure was not TULSI RAM liable to enhancement under the provisions of the law. It is true that the paragraph in question does not contain a specific statement to the effect that the tenure has been held at a uniform rate from the time of the Permanent Settlement; but such a statement is not absolutely necessary, as has been repeatedly held by this Court, in order to entitle a tenant to the benefit of section 3 of the Act. The said paragraph, however, distinctly states that the tenure is a kadimi or ancient tenure, and the provisions of section 4 and the various rulings of this Court upon that section are expressly set up as a bar to the enhancement sought for by the plaintiff. The words "long before twenty years" appear to have been used merely with reference to the provisions of section 4; and it would be in my opinion altogether inconsistent with the entire context to hold that, by using those words, the defendants intended to say that their tenure had come into existence at a time subsequent to the date of the Permanent Settlement. The Deputy Collector says:-"It is to be observed that "the witness Shabrat Ali states that the land was first brought "under cultivation by the defendants' father," and he wishes to infer therefrom that the tenure in question could not have been in existence at the time of the Permanent Settlement. But it is to be observed, in the first place, that it is highly unjust to deprive a party of the opportunity of proving a particular point, and then to draw unfavorable inferences against him, with reference to that point, upon the isolated statement of one of the witnesses examined by him to prove the other points in the cause. Be this as it may, it is perfectly clear that the fact of the lands in dispute having been first brought under cultivation by the father of the defendants, is by no means inconsistent with the existence of the tenure at the time of the Permanent Settlement. No pains appear to have been taken by the Deputy Collector to ascertain either from the defendants or from their witnesses as to when it was that the lands were first brought under cultivation by the defendants' father; and it is impossible to say that the period during which the tenure has been held by the

1870 defendants, when added to the period during which it was held HARRAK SING by their father, may not be equal to the period that had elapsed TULSI RAM between the Permanent Settlement and the institution of this suit.

v.

SAHU.

It has been said that the point now raised before us was not urged in the memorandum of appeal filed by the defendants in the lower Appellate Court, the ground taken therein being, that the defendants have succeeded in showing that their tenure had been held at a uniform rate for a period of twenty years next before the institution of the suit, and that the presumption arising from that fact in their favor had been no way rebutted by the plaintiff. This statement appears to be correct; but under the circumstances mentioned above, I think that there has been no fair trial of this case by either of the Courts below. The lower Appellate Court does not appear to have passed any opinion even upon the point that was distinctly raised by the defendants in their memorandum of appeal. The defendants, it appears, had put in their rent receipts for more than twenty years prior to the date of suit, and they had, in their examination before the Deputy Collector, distinctly sworn that they were the receipts of their tenure. It cannot be, therefore, said that the plea taken by them before the Judge was altogether unsupported by the record; and if the Judge had inquired into that plea, as he was bound to do, it is impossible to say what conclusion he would have arrived at with reference to it. Under these circumstances, I am of opinion that this case has not been properly tried, and that it ought to be, therefore, sent back to the Court of first instance to be tried, with reference to the foregoing remarks.

The judgment of Jackson, J., as that of the senior Judge, prevailed.

On the 11th of February 1869, a petition of appeal, under section 15 of the Letters Patent, was filed by the defendant on the following grounds :

First.-The Court has committed an error in holding that the defendants' allegation suggests a commencement of the holding at a much later period than the Permanent Settlement.

Second.-The Court should have held that the issue of hold

ing from the time of the Permanent Settlement properly arose 1870 in this case from the written statement of the defendants and HARRAK SING from their oral examination.

Third.—There is nothing in the defendants' statements to rebut, or destroy, or negative the presumption of a holding since the Permanent Settlement, and, therefore, the case should have been remanded.

Fourth. It has not been found by the first Appellate Court that the productive powers of the land have increased at all from former years. The mere fact of repairing an "ahur" will not entitle the plaintiff to enhance, until it be proved and found that the expense incurred by the zemindar resulted in the increase of the productive powers, by proving actual increase.

On the same day the following order was passed thereon by

L. S. JACKSON and MARKBY, JJ.-No good cause has been made out for allowing this appeal long after the lapse of thirty days. The judgment of both the Judges composing the Division Bench was given in open Court, on the 25th of November. The party thereupon had his right of appeal, and was bound to present that appeal within thirty days from that date, unless he could show good cause to the contrary. The application must be refused.

A second petition of appeal was presented on the 3rd of April 1869, which was in the following terms:

"That your petitioner was appellant in Special Appeal, No. 1208 of 1868, against one Tulsi Ram Sahu and others.

"That the case was heard by a Division Bench of this Hon'ble Court, on the 25th November 1868, consisting of Mr. Justice L. S. Jackson and Mr. Justice Mitter; and that there was a difference of opinion between the two learned Judges. The judgment was orally delivered.

"That the decision of Mr. Justice Mitter was in favor of your petitioner, and that of Mr. Justice Jackson against him. "That the written decision of Mr. Justice Jackson was given in on the 25th January 1869.

"That your petitioner had filed his stamp paper for an attested

v.

TULSI RAM
SAHU.

บ.

1870 copy of the judgments of the learned Judges, on the 7th DecemHARRAK SING ber 1868, with a view to file an appeal to the Court at large; TULSI RAM and as Mr. Justice Mitter's decision was not given in, he received attested copies on the 1st February 1869. meantime, constant applications were made to the Court for the copy.

SAHU.

That, in the officers of the

"That, on the 11th February, an appeal petition having been drawn out on full stamp was presented by your petitioner's pleader, Mr. C. Gregory, before Mr. Justice L. S. Jackson's Bench, because His Lordship was one of the Judges who decided the case, and the application was made to him for the admission of the appeal, under the impression that the word "Court," in the rules for admission of appeals to the Court at large, was taken to mean any Division Bench.

means

"That your petitioner submits that the word "Court the Court at large, of which the Hon'ble the Chief Justice is the President.

"That the decision given in on the 25th January 1869 should have been dated on that day, according to the rules laid down in Act VIII of 1859.

"That the order of Mr. Justice Jackson and Mr. Justice Markby is without jurisdiction, and ought not, therefore, to bind the Court of Appeal under section 15 of the Charter Act.

"That the Court, as distinguished from a Divisional Bench of the Court, has the power to admit your petitioner's appeal.

"That it is necessary, by the rules laid down, that the petition should contain the objections to the decision appealed against, stated and mentioned, and it was thought prudent to obtain a copy of the judgment before an appeal to the Full Court was presented, in order that the objections may be well considered and stated.

"That the judgment of this Court, dated 25th November 1868, and the order of the 11th February, are herewith filed.

"Your petitioner, therefore, humbly prays that the said appeal put in by your petitioner, on the 11th February 1869, be considered as in time, or that an order be made for the admission of the said appeal, and your petitioner, as in duty bound, will ever pray."