Dawson Miller, C.J.The suit out of which this appeal arises was instituted before the Munsif at Monghyr in July 1919 by the Plaintiffs as landlords claiming u/s 7 of the Bengal Tenancy Act an enhancement of the rent of their tenants, the Defendants, who held as tenures under them 20 bighas 7 cottahs 12 dhurs of land. The question for determination in the suit was whether the Defendants held at a fixed rent or whether their rent was liable to enhancement. It was proved by evidence at the trial and in fact it is admitted in the plaint that the Defendants had held for the last 20 years and more at the same rental, namely, Rs. 34-5-6 which included Rs. 1-0-6 as cess, the actual rent being Rs. 33-5-0. Recently the cess has been increased to Rs. 8 odd. In these circumstances the Defendants relied upon the presumption u/s 50, Clause (2) of the Bengal Tenancy Act which provides that "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 20 years immediately before the institution 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." If that were all then there can be no doubt upon the facts found in this case that the Defendants were entitled to the benefit of the presumption under that section. By Section 115 of the Act, however, it is provided that "when the particulars mentioned in Section 102, Clause (b) have been recorded under this Chapter in respect of any tenancy, the presumption u/s 50 shall not thereafter apply to that tenancy." The Plaintiffs contended that in the circumstances of this case the particulars mentioned in Section 102 had been recorded under Chap. X of which that Section and Section 115 formed part and therefore that the presumption arising u/s 50 no longer applied. The question for determination really depends upon whether the particulars mentioned in Section 102 have or have not been recorded as therein provided. Section 102 provides that "when an order is made u/s 101, the particulars to be recorded shall be specified in the order, and may in-elude either without or in addition to other particulars, some or all of the following, namely:

(a) the name of each tenant or occupant:

(b) the class to which each tenant belongs, that is to say, whether he is a tenure-holder, raiyat holding at fixed rates, settled raiyat, occupancy raiyat, non-occupancy raiyat or under-raiyat, and if he is a tenure-holder, whether he is a permanent tenure-holder or not, and whether his rent is liable to enhancement during the continuance of his tenure." It ought perhaps to be mentioned that Section 101 referred to in the Section just quoted provides that the Local Government may, in any case, make an order directing that a survey be made and record of-rights prepared by a revenue officer in respect of the lands in any local area, estate or tenure or part thereof in certain cases and as a Rule the order directing the record-of-rights to be prepared would contain the particulars which ought to be recorded and which are referred to in Section 102. What happened in the present case was that when the record-of-rights was being prepared in the year 1903 there was a dispute u/s 103 A of the Bengal Tenancy Act, that is, after the draft record was published but before final publication and the result of that dispute was that the Assistant Settlement Officer directed that the Defendants, the tenure-holders, should be entered in the record-of-rights as tenure-holders and nothing more. They were so entered and no entry was made as provided in Section 102 as to whether they were permanent tenure-holders or not or whether the rent was liable to enhancement during the continuance of the tenancy. The whole question was apparently left open. At all events the particulars referred to in Section 102 were not in fact entered in the record-of-rights. In the decision which was come to in that dispute u/s 103A the Assistant Settlement Officer stated that there was no evidence of the rent being fixed for ever and under the circumstances he merely ordered the Defendants name to be entered as tenure-holders. The learned Government Advocate who appears on behalf of the landlords Appellants in this case has asked us to say that the decision of the Assistant Settlement Officer ought to be regarded as a substantive part of the record-of-rights and therefore the record-of-rights ought to read as if it stated that the Defendants were not in fact tenure holders at a fixed rate and if that is so, then the presumption attaching to the record-of-rights u/s 103B ought to be applied equally to the decision of the Assistant Settlement Officer as if it formed part of the record. I am unable to take this view. u/s 103B of the Act the presumption applies only to the actual entries in the record-of-rights as finally publish-and not to any thing else. Therefore it cannot be contended that there arises from the record itself any preemption beyond the fact that the defendants are tenure-holders. In fact the reason why no further particulars were given was that before the Assistant Settlement Officer no evidence was given which would enable him to come to a decision upon this question.

2. On behalf of the Appellants it has been contended, however, that u/s 115 the moment the record-of-rights has been prepared and any of the particulars mentioned in Section 102 entered therein, the presumption arising u/s 50 ceases to apply. In my opinion the presumption arising u/s 50 only ceases to apply by reason of Section 115 when the particulars required by the order of the Local Government directing the survey and record-of-rights to be prepared have been in fact recorded. As a rule, as already stated, the order would require the particulars mentioned in Section 102, as to whether the tenure is permanent or not and as to whether the rent of a, tenure is liable to enhancement or not, to be recorded. In the present case they were not recorded and the Appellants who rely upon Section 115 coupled with Section 102 have failed to satisfy the Court that the particulars required in the present case were in fact recorded. Indeed the order made by the Local Government has not been produced but it seems to me that it is impossible for the Appellants to prove that the particulars required to be recorded under that order have in fact been so recorded Until that is proved and what the order contained and what the particulars required were. In this state of affairs it seems to me that the Appellants case upon this part of the appeal must fail and that the presumption arising u/s 50 of the Bengal Tenancy Act has not under the circumstances of this case ceased to apply.

3. The next point which was urged on behalf of the Appellants was that where an entry is made in the record-of-rights that the Defendants were tenure-holders and nothing else, it ought to be presumed that they are not either permanent tenure-holders or tenure-holders at fixed rates. In my opinion it would not be right to presume that the entry in the record-of-rights meant to record anything more than was actually recorded, and where the question is left open as to whether they are permanent tenure-holders or whether the rent is liable to enhancement or not it seems to me that there is nothing in the record itself from which these facts could be inferred and certainly nothing which would create any presumption of their existence.

4. It was further contended that in the present case although the rental may for the last twenty years have been the same there is some evidence to show that shortly before that period the rental was somewhat different and therefore that the presumption arising u/s 50 had been rebutted. The facts in connection with this matter have been stated at length by the learned Munsif of the trial Court who found in favour of the Defendants that they were tenure-holders, at a fixed rate and dismissed the suit.

5. The Subordinate Judge on appeal took the view that the presumption arising u/s 50 did not apply and he granted a decree for enhancement of rent.

6. On second appeal to this Court the learned Judge who heard the appeal set aside the decision of the Subordinate Judge and restored that of the Munsif. From that decision the present appeal is brought under the Letters Patent.

7. The facts which were found by the Munsif were not dissented from by the Subordinate Judge and it has not been suggested to us in this appeal to-day that those facts are not accurate. They may therefore be taken as representing the true state of affairs. For the last 20 years and a little more it is clearly proved that the rent was Rs. 33-5-0 Rent suits have been brought, in some cases they included cess and in some they did not the cess till recently was Rs. 1-0-6. Where that was included in the rent suits the rent recoverable was Rs. 34-5-fi, where that was not included the amount recovered was Rs. 33-5-0 but in one case which was heard in the year 1893 the rent recovered was Rs. 33-4-17 1/2 dams. For all practical purposes it may be called Rs. 33-5-0.

8. There is nothing to show whether that included cess at that time payable or whether it did not and in these circumstances I think it may well be assumed that this rent was exclusive of cess. If the cess is added then there is practically no difference between the rent claimed and recovered on that occasion and the rent as now recorded in the names of the defendants. The defendants therefore clearly established that not only for the last 20 years but for several years before, the rent they have paid has been the same rent as they are paying at the present moment. This point therefore raised by the Appellants also fails. The result is that the appeal is dismissed with costs.

Mullick, J.

9. I agree.