1. These two appeals arise out of two rent suits, for recovery of chauraha rent in respect of the same holding but for different periods. The plaintiff and the defendants are common. Sachitanandan Prasad, the landlord, first instituted Rent Suit 3058 of 1951 in respect of years 1357 and 358 Fasli and again another Rent Suit 110 of 1952 in respect of the subsequent year, namely 1359 fasli. The holding was recorded bhaoli in the survey record-of-rights. Janak Prasad Gir and others, the tenants, applied for commutation of rent under Section 40 of the Bihar Tenancy Act and the produce rent was commuted to money rent. The plaintiff landlord challenged the validity of the commutation and alleged that it was illegal, without jurisdiction and not binding upon him. On these allegations he claimed chauraha rent ignoring the commuted rent. The defence in both the suits was common. The tenants defendants pleaded that the produce rent had been commuted to money rent, that he commutation was perfectly legal and valid and binding upon the landlord and that the plaintiff was not entitled to recover from them the produce rent.

2. It appears that Rent Suit 110 of 1952 was subsequently converted into a title suit, since the validity of the order of commutation was in question and was numbered as Title Suit 110 of 1952.

3. In Rent Suit 3058 of 1951 both the Courts concurrently held that the commutation was legal and binding upon the landlords and gave a decree for money rent. The plaintiff has come up in Second Appeal which is 1158 of 1954. In the other suit, namely, Title Suit 110 of 1952 the learned Munsif held that the commutation was legal and binding, and hence gave the plaintiff a decree for money rent only. The plaintiff took an appeal to the District Judge and the appellate Court held that the commutation was illegal and not binding and remanded the case for a finding as to the quantity of produce and the price thereof. The defendants have now come up in Second Appeal, which is 314 of 1955.

4. Both the appeals have been heard together and this judgment will govern both.

5. The only question that has been canvassed before me is whether the commutation was legal and binding upon the plaintiff. The legality of the order of commutation was impugned on four grounds, first, that notice of the proceedings under Section 40 of the Bihar Tenancy Act was not served upon the plaintiff; secondly, that all the tenants were not represented in the proceedings; thirdly, that the holding in question related to tauzi 6461/12, whereas the proceedings were in respect of a holding appertaining to tauzi 6461; and, lastly, that, strictly speaking, the holding bore Chauraha rent, that is to say, fixed quantity of rice, whereas in the application for commutation it was described as bhaoli, the suggestion being that, the defendants procured a wrong order by committing fraud upon the Court.

6. As regards the first point, it appears that in second Appeal 314 of 1955, the plaintiff examined, himself and denied the service of notice upon him. The defendants examined one witness, D.W 1, who stated that the notice was served on the plaintiff in his presence. There was thus oath against oath, in these circumstances, the learned Munsif accepted the evidence of D.W 1 and held that the notice had been served, because, in his opinion, the onus was upon the plaintiff to establish non-service of the notice in view of the order-sheet of the proceedings showing that the service had been effected on the plaintiff. The learned Additional District Judge came to a different conclusion. He held that the plaintiff had denied the service of the notice and this was enough to shift the onus of proving the service on the defendants.

7. He was of the view that the presumption under Section 114 of the Evidence Act regarding due performance of the judicial and official acts was available so long as there was no denial of service. After considering the evidence in this light, he was of the opinion that the evidence adduced by the defendants was not adequate to prove service, and the presumption of non-service arising from the denial by the plaintiff had not been rebutted. He accordingly held that the notice had not been served and, therefore, the order of commutation was without jurisdiction and null and void. Mr. N.C Ghosh appearing for the appellant contended that the recital in the order-sheet that the notice had been served was sufficient in law to raise a presumption of the service and that in absence of any evidence to rebut this presumption, it must be held that the notice had been duly, served.

8. Mr. Sarwar Ali on behalf of the respondents, urged that in order to raise the presumption under Section 114 of the Evidence Act the production of the order-sheet showing service of notice was not enough and that the report of the peon should have been produced. His contention is that the presumption of due performance of judicial and official acts arises not from the order-sheet but from the report of the peon itself. He relied upon a decision of this Court in Hitnarain Sing v. Rambarai Rai, AIR 1923 Pat 459 (A). In this case it was no doubt held that the order-sheet itself does not raise a presumption that the notice was served, and that it merely records the opinion of the officer that the notice was served.

9. This case was considered in a later case of Parmeshwar Sahu v. Nandkishore Lal, ILR 11 Pat 1; (AIR 1932 Pat 123) (B), where their Lordships of the Patna High Court pointed out that the observations in the case of Hitnaram Singh, above referred to, were on somewhat wide terms and against the various earlier decisions of the Division Bench this Court. After referring to the previous decisions, of this Court in the cases of Kuldip Narain Tewari v. Ram Lal Mandal, ILR 7 Pat 260 : (AIR 1928 Pat 318) (C), Nandkishore Choudhury v. Rameshwar Singh, 78 Ind Cas 476 : (AIR 1924 Pat 515) (D) and Ram Protap Marwari v. Jhoomak Jha, 39 Ind Cas 943 : (AIR 1917 Pat 525) (E), they have held as follows:

“….the weight of the judicial decisions of this Court is in favour of the view that a certificate in the order-sheet of the Collector that the notice has properly been served is prima facie evidence that such a notice has been served but it is not conclusive. It is open to the other party to challenge it and show that the notices were not served in time, but, in the absence of any evidence to the contrary, such a service must be presumed”.

10. This case is, therefore, an authority for the proposition that the order-sheet itself raises a presumption that the notice in question was duly served and, therefore, every presumption must be made as to the regularity of official act under Section 114 read with Illustration (e) of the Evidence Act. Mr. Sarwar Ali, however, contended that in view of the difference of opinion in the two Division Bench, cases, the decision relied upon by him, being earlier in time must prevail upon the later decision. This is not quite accurate. There were Division Bench decisions prior to the decision in the case of Hitnarain Singh relied upon by him and those decisions formed the basis of the decision in the later case of Parmeshwar Sahu.

11. In fact, the earlier decisions were not at all considered in the case of Hitnarain Singh, and, therefore, on the reasoning of Mr. Sarwar Ali himself, the decision in the case of Parmeshwar Sahu must stand. In my opinion, the decision in the case of Hitnarain Singh is not an authority which is binding upon this Court. Therefore, the certificate in the order sheet of the Collector showing service of notice on the plaintiff raises a presumption that the notice was validly and properly served upon the plaintiff. This presumption, however, is rebuttable and the onus to rebut it lay heavily upon the plaintiff. There is however, no evidence to show that the notice was in fact not served beyond the uncorroborated testimony of the plaintiff.

12. On the other hand, there is the sworn testimony of D.W 1 to the effect that the notice was served upon the plaintiff in his presence. There is no valid reason to prefer the evidence of the plaintiff to that of P.W 1. In fact, the plaintiff's testimony being partisan must be viewed with caution. At any rate, the presumption remains unrebutted by ??? evidence. Considering the evidence of D.W 1 in the right of the statutory presumption, it must be held that the notice had been served upon the plaintiff.

13. I may state, however, that this contention if Mr. Sarwar Ali is not tenable so far as Rent Suit 5056 of 1951 is ??? because in that case the report of the neon had been filed, and, therefore, even assuming that it is the report and not the certificate in the order-sheet which raises the presumption, the contention of Mr. Sarwar Ali must be overruled, because in this case the peon's report had been filed and the presumption was not rebutted by convincing evidence.

14. The ground of non-service of notice, there fore, falls to the ground.

15. It was next contended that all the defendants were not represented in the commutation proceedings, it will appear that the application for ??? was presented only by Janak Prasad Gir. The other defendants were not parties to the proceedings. It will be observed that the defendants constituted a Hindu joint family and Janak Prasad Chr is the karta of that family. The other defendants are minors, and they are under his guardianship. It will appear, therefore, that there was effective representation of the holding. Apart from that, in Title Suit 110 of 1952 the learned Munsif held that Janak Prasad Gir alone is recorded in the laggit of the landlord.

16. The defendants adduced evidence to prove this fact, and the plaintiff did not produce his laggit to contradict it. It must be held, therefore, that Janak Prasad Gir alone represented the holding in the landlord's sherista. The learned Additional District Judge, however, overruled this finding of the learned Munsif and held that the order was invalid, because of non-representation of the defendants in the said proceedings, without attempting to dislodge the finding of the learned Munsif. When Janak Prasad Gir is the head and karta of the family and is the only person, recorded in the landlord's sherista in respect of the holding in suit, there was without doubt an effective representation of the holding, as also of the other defendants in the commutation proceedings and the order cannot be impugned as illegal on that ground.

17. In the other rent suit, however, this question was not raised in the trial Court but was agitated in the appellate Court. Since it is a question of fact, it should not have been allowed to be raised in the lower appellate Court. Anyway, the appellate Court-negatived this ground. I must hold that the holding was properly represented in the commutation proceedings.

18. It was next contended that the order of commutation was bad since the holding in question related to tauzi 6431/12, whereas the application was in respect of a holding appertaining to tauzi 6431. This is merely a clerical error and did not affect the jurisdiction of the Revenue Court to entertain and dispose of the application for commutation. As a matter of fact, both the parties understood what holding was involved in that proceeding. I am unable to accept this argument as correct.

19. Lastly, it was contended that the entire order of commutation was illegal, because it was obtained on the representation to the Revenue Officer that the holding was danahandi Bhaoli whereas in fart it was held on Chauraha system. This argument ??? without substance. Section 40 of the Bihar Tenancy Art. provides genera for commutation of “rent in kind”. It does not speak specifically of either Chauraha or batai or danabandi bhaoli. They are all rent in kind. Therefore, the expression “rent in kind” used in S. 40, is comprehensive enough to include produce rent of whatsoever ??? such as, chauraha, danabandi, bhaoli or batai. Therefore, the Revenue Court was competent to entertain the application and commute the rent even if the holding was wrongly described as being held on danabandi bhaoli. There is nothing to show, and it has not been contended, that the result would have been different if this mis-description had not occurred in the application. In my opinion, this mis-description does not affect the jurisdiction of the Commutation Officer and the order was not illegal on that score.

20. It must be held, therefore, that the order of the Commutation Officer was perfectly valid and legal and was binding upon the plaintiff. For the reasons aforesaid, Second Appeal 1158 of 1954 is dismissed with costs. Second Appeal 314 of 1955 is allowed with costs throughout, the decree of the Court below is set aside and the decree of the learned Munsif is restored.

M.K.S

21. Order accordingly.