Dhavle, J.:— This appeal relates to Beliapur, a mauza in the Panchet Estate in the district of Manbhum. According to the plaint, the plaintiffs and their co-sharers, like their predecessors in title, had been in possession of a part of the mauza in talabi or kheraji brahmottar right on a uniform rate of rent from long before the Decennial Settlement, the kheraji or talabi rental for the mauza being shown as Rs. 6-12-0 in the sarsikan paper of 1197 (Bengali era), and the plaintiffs enjoying a demarcated four-anna share of the mauza on a proportionate rent. In the proceedings leading to the record-of-rights which was finally published in November, 1923, the plaintiffs were at first recorded as holders of a four-anna share in the kheraji brahmottar, but on an objection under section 83 of the Chota Nagpur Tenancy Act by the principal defendants 1 to 4, the immediate landlords of the plaintiffs, the status was altered from kheraji brahmottar to jamai satwa and the rent which the plaintiffs had been uniformly paying for a long time was shown as liable to enhancement. The plaint, therefore, prays for a declaration that a four-anna share of the inauza belongs to the plaintiffs in kheraji brahmottar right, that the rent payable by them is fixed at Re. 1-12-13-3 (karas) and is not liable to enhancement, and that the entries to the contrary in the record-of-rights are erroneous. The suit was contested by defendants 1 to 4, who claimed that the mauza was in their khas possession as patnidars and that the plaintiffs and others held merely as ordinary raiyats. The learned Subordinate Judge who tried the suit came to the conclusion that the plaintiffs have a kheraji brahmottar right in the mauza, that the rent paid by them for this right is fixed and not liable to alteration, and that the record-of-rights to the contrary is incorrect; but he was not satisfied that it was a four-anna share of the mauza that was held by the plaintiffs. He accordingly decreed the suit in part. Defendants 1 to 4 appealed to the District Judge, and there was a cross-objection by the plaintiffs in so far as their claim to a declaration that they held a four-anna share in the mauza had been dismissed by the trial court. The learned District Judge dismissed the appeal and allowed the cross-objection. Hence this second appeal by defendants 1 to 4.

Before dealing with the points really pressed in the appeal, it is desirable to notice a contention that was raised somewhat half-heartedly by learned Counsel for the appellants. Among the papers relied on by the lower court is Exhibit 5, a certified copy (extract) prepared from a register of sarsikan papers in the Manbhum Collectorate. Learned Counsel referred to the fact that the register is itself a copy of a copy, the suggestion being that Exhibit 5 is, therefore, inadmissible in evidence. Now, it is undeniable that a copy transcribed from a copy of an original document but not compared with the original is not even secondary evidence of the original [see Illustration (c) to section 63 of the Evidence Act]. But it has been found that the Purulia Record Room was burnt during the Mutiny of 1857, and it seems to me that the document which is to be treated as the original in these circumstances is the register now available in the Manbhum Collectorate. Under section 35 of the Evidence Act, entries in such registers are relevant evidence, and section 65 of the Act shows that they can be proved by certified copies, such as we have in Exhibit 5. The document was, therefore, rightly admitted in evidence, notwithstanding the objection made by the defence. I observe further that the allegation found in paragraph 2 of the plaint that the sarsikan paper of 1197 showed Beliapur as a mauza held in brahmottar right on the annual Kheraji or talabi rental of Rs. 6-12-0 was not specifically controverted in the appellants' written statement, and that there was apparently no dispute about the contents of the paper before the Assistant Settlement Officer who disposed of the objection under section 83 of the Chota Nagpur Tenancy Act in appellants' favour.

Learned Counsel for the appellants has urged that the lower courts were, in error in treating the sarsikan paper, Exhibit 5, as if it gave the rents payable by the tenure-holders of the mauzas named in it to the zamindar. He contends that the paper instead gives the figures of revenue as distributed by the zamindar over the various mauzas. He has suggested that the paper must have been submitted by the zamindar under the “Amended Code of Regulations relative to the Decennial Settlement of Bengal, Bihar and Orissa, approved by the Governor-General in Council on the 23rd November, 1791”, (see pages 308 et seq. of Colebrooke's Supplement to the Digest of the Regulations from 1793 to 1806). According to the forty-third paragraph of this Code,

“all zamindars……………………… assessed by Government in the course of the first year are to distribute the total assessment of their zamindaris on the several villages contained therein, equally and impartially, according to the rents derived therefrom respectively and to deliver a record of such distribution in the course of the three first months of the ensuing year and successively for each year; specifying the name of each village……………the estimated quantity of land in each…………… together with an extract thereof, containing the distribution of the sudder jumma upon each pargana………………”

Now, Exhibit 5 does not purport to refer to the law under which the sarsikan paper was submitted by the landlord or recorded in the Collectorate, nor does it give — possibly because it is an extract only — all the details required under the forty-third paragraph of the Code. What it does purport to do is to give the “sarsikan jama” of Chakla Panchkote (now Panchet) in respect of pargana Chaurasi Balyapur (the present Beliapur) is mentioned in it under the heading “name of village”, a heading which is followed by the sub-heading “talabi brahmottar”, and Rs. 6-12-0 is shown against the mauza as the “sikka jama”. Learned Counsel has referred to the statement on page 193 of Mr. Coupland's Gazetteer of the district of Manbhum, 1911, that

“the so-called quinquennial papers of 1197 (1790), which were furnished by the zamindar in this (seil., the Barabhum) as in other estates regularly settled in order that in the event of default and a portion of an estate having to be sold, material for allocation of the revenue might be available, contains nothing but a list of 149 villages without any distribution of the revenue.”

He has also drawn attention to another statement at page 196 of the same well-known book of reference that at the Decennial Settlement the revenue of the Panchet Estate was fixed at a certain amount which was

“arrived at by detailed assessment of every village within the zamindari with the exception of the numerous rent-free grants.”

The former of these references suggests not only that the quinquennial paper of 1197 was expected to give the distribution of the revenue upon the villages but also that in estates other than Barabhum the zamindars failed in spite of a regular settlement to give such distribution. The second reference is far from clear; if the “detailed assessment” of every village is taken to mean the revenue, there would apparently be no need for any distribution of the revenue by the zamindar, and if, on the other hand, the expression means the ascertainment of the zamindar's income from each village, it is not impossible that Exhibit 5 merely repeats that figure. Sarsikan papers, so-3 called, giving not the distribution of revenue but only the zamindar's income from the mauzas, are also not unknown in the courts. The sarsikan papers in First Appeal no. 156 of 1929 which was recently heard in this court, for example, show the “total rent which the zamindar gets from the ilaqadars” of the particular mauzas mentioned in them, and leave the column for “Total revenue payable to Government” blank. It is true that these papers came not from Manbhum but from the neighbouring district of Hazaribagh and that they were submitted by the zamindar long after the Permanent Settlement. I have only referred to them to show that the contents of “sarsikan” papers were by no means effectively standardized, and that the interpretation of the expression “sarsikan jama” in Exhibit 5 must depend on the particular facts and circumstances of the present case. The contention that Exhibit 5 gives the revenue and not the rent was not raised in the lower courts, and this is significant since the Assistant Settlement Officer also had treated the jama in Exhibit 5 as the rent. No reference has been made to any evidence adduced on the point, nor has any other amount of rent been suggested for the mauza such as would make a revenue of Rs. 6-12-0 at all probable, having regard to the nature of the tenure. According to the sarsikan paper itself, the mauza was “talabi brahmottar”; and it appears from Mr. Coupland's Gazetteer (page 205) that the tenures known as talabi brahmottars, among others,

“take rank among the hereditary tenures at a fixed rent not liable to enhancement.”

For further information regarding the nature of these tenures, one may perhaps refer to paragraph 97 of the Final Report of the Survey and Settlement Operations in the district of Manbhum, 1918–1925. After dealing with lakheraj betalabi or nishkar brahmottars, which are all rent-free, and panchaki or mogli brahmottars which bear a very small quit-rent fixed in perpetuity, Mr. Gokhale, the Settlement Officer, comes to kheraji or talabi brahmottars and says that

“In course of fair rent settlement it was occasionally argued that the rent of kheraji brahmotar tenure is not necessarily fixed in perpetuity. In no single instance, however, was the rent of such a tenure found to have altered except as a result of fraud or collusion. It is perhaps not unlikely that kheraji brahmotar tenures were originally ordinary intermediate tenures on enhanceable rent which were called brahmotar merely because they were held by Brahmins. It has been, in the past, difficult enough for landlords in Manbhum to enhance the rents even of ordinary tenure-holders or raiyats under them. These difficulties must have been more formidable when the tenure-holders happened to be Brahmins and the superior landlords occupied a somewhat ambiguous position on account of their elevation from the rank of aborigines to the dignity of Chhatri Rajputs. No wonder, therefore, that in practice the rents of kheraji brahmotar tenures were never touched. In course of time hardly any difference came to be recognised between kheraji and mogli brahmotars. In the course of this settlement, it was found that the rent of all brahmotar tenures, whether kheraji or mogli, was fixed for ever and was not liable to alteration.”

These tenures escheat to the Crown, and not to the zamindar, and the question of mineral rights between zamindar and tenure-holder had not arisen in those days. The zamindar had, therefore, little interest in the mauza beyond the fixed talabi rent, and, if he ever complied with paragraph 43 of the Amended Code of 1791, would naturally in his returns throw as much revenue upon such mauzas as possible. There is thus little definite reason in the present case for assuming that the rent of this talabi brahmottar mauza in 1790 must have been in excess of the revenue distributed by the zamindar on it, even if it be the latter that was really shown in Exhibit 5.

The considerations already set out regarding the nature of brahmottar tenures in the district incidentally go far to show that the rent was not liable to enhancement, even apart from such special statutory provisions as are contained in sections 9 and 51A (1) of the Chota Nagpur Tenancy Act or the similar provisions of the Bengal Rent Act, Act X of 1859, which was in force in this district down to December, 1909. Has the rent changed in fact? Learned Counsel lays stress on the circumstance that the Assistant Settlement Officer recorded an aggregate rent of Rs. 15-7-6, instead of the Rs. 6-12-0 of 1790, for the entire brahmottar tenure. But the order of the Assistant Settlement Officer, Exhibit A, makes it clear that this includes rents paid by several tenants whose old receipts do not show them to be holders of any portion of the kheraj brahmottar. Plaintiffs' own rate has only varied from Re. 1-11-0, which is directly evidenced by two receipts of 1831 and 1833, Exhibits 1 and 1(1), to Re. 1-12-13-3 (karas) which is found in a number of receipts ranging from 1848 [Exhibit 1(A)] down to 1880 [Exhibits 1(a) and 1(b)]. In the record-of-rights it stands at Re. 1-12-9. The calculation made by the Assistant Settlement Officer shows that the change merely corresponds to the substitution of Company's rupees for sikka rupees in the later thirties of the last century. He apparently took the batta at one-sixteenth and found Rs. 6-12-0, plus the batta, equivalent to Rs. 7-2-9, an amount which is exactly four times as large as Re. 1-12-13-3 (karas), as Rs. 6-12-0 was to Re. 1-11-0. The learned District Judge, on the other hand, seems to have proceeded on the footing that the batta was at the rate of one-fifteenth; according to him Rs. 6-12-0 (sikka), converted into Company's coin, must have been Rs. 7-3-4 gandas, of which one-fourth would be Rs. 1-12-16 gandas. Assuming this to be right, we have here but a nominal change in plaintiffs' favour from not later than 1848 [the date of Exhibit 1(k)], for Re. 1-12-13-3 (karas) and Re. 1-12-16 (karas) both differ from Re. 1-12-9 in King's coin, the rent recorded by the Settlement Officer by less than a pie. In a number of reported decisions under Bengal Act X of 1859 it was held that such a nominal, unexplained variation was insufficient to destroy the tenant's right of a fixed jama. See, for example, Babu Huro Nath Roy v. Ameer Biswasi and Anund Lall v. James Hills. The lower courts have concurrently believed the direct “evidence regarding the uniform or practically uniform amount of plaintiffs' rent furnished by the receipts. In addition they have relied on the sarsikan paper, a deposit chalan (Exhibit 2) of 1890 and the landlords' acceptance of the deposit (Exhibit 6), and a judgment of 1893, Exhibit 9, (which was upheld in appeal, Exhibit 10) in certain rent suits in which the predecessor in title of the present plaintiffs was able to defeat a claim of his landlords for the rent of khuchran lands in the village by showing that he was really a co-sharer of the mauza which with others he held in kheraji brahmottar right. The learned District Judge concluded that the entry in the record-of-rights that plaintiffs' rent was liable to enhancement could not be correct, regard being had to the fact that the rent of plaintiffs' share “has been uniform for such a long series of years”. Learned Counsel has urged that the lower appellate court must in this connection have overlooked the fact that the presumption from holding at an unchanged rate for twenty years, which is provided by sub-section (2) of section 51A of the Chota Nagpur Tenancy Act does not arise in the present case, as it was not a “suit, application or proceeding” under the Act. It has, however, been repeatedly held that even in cases where the statutory presumption is not directly applicable, the court may act on a similar presumption if the facts justify the necessary inference—see Buzlul Karim v. Satish Chandra Giri and Pran Krishna Saha v. Mukta Sundari Dasya(4). It is true that to presume from the mere absence of any alteration in the rent during a number of years (apart from any statutory provision) that the rent is fixed would be to drive the landlord to enhance rents at certain intervals even though he might himself not desire to do so.

But in the present case there is more than one circumstance—even apart from Exhibit 5 with its disputed admissibility and disputed interpretation—which, taken with the long continued payment of the same rent, leads to a fair inference that the rent of plaintiffs' share was fixed. One such circumstance is the nature of the tenure as gathered from the Gazetteer and Mr. Gokhale's Settlement Report. Another circumstance is the fact that more than once in the nineties of the last century, when the Bengal Rent Act, Act X of 1859, was in force in the district, plaintiffs' predecessor in title affirmed that he held a four-anna share in the lakheraj brahmottar of the mauza, at a rent of Re. 1-12-13-3, and that the landlord took no effective steps against it. The concurrent finding that, the plaintiffs' rent is fixed and not liable to alteration must, therefore, stand.

It has also been contended on behalf of the appellants that even if plaintiffs' rent be fixed and not liable to enhancement, the lower appellate court was in error in deducing a four-anna share for the plaintiffs from the facts that the total rent of the kheraj brahmottar was Rs. 6-12-0 in 1790 and that plaintiffs' share of the rent from 1831 onwards was one quarter of that amount. Krishna Kamini Dasi v. Nilmadhab Sahai has been cited in support, and it has been urged that in order to justify such an inference it must be shown that the total rent had not undergone any change between 1790 and 1831 and that each fragment of the tenure was held at a proportionate rent. The point, however, that was decided in the case referred to was merely whether the subdivision of a tenure does or does not operate as a breach of the continuity of the tenure even if each fragment is held at a proportionate rent and the aggregate rent equals the original rent, notwithstanding the fact that sub-section (3) of section 50 of the Bengal Tenancy Act, the Act which applied to that case, provides not for tenures but for “land held by a raiyat”. There is a similar provision in sub-section (3) of section 51A of the Chota Nagpur Tenancy Act, which like the rest of the section was added to the Chota Nagpur Tenancy Act in 1920; and as was shown in the case of Krishna Kamini Dasi v. Nilmadhab Saha, it was held in a series of rulings under Act X of 1859 that mere subdivision does not affect the continuity of a tenure, nor is that position contested in the present case. What has been argued is that as the aggregate rent now is; Rs. 15-7-6, it may well be that the rent of plaintiffs' share went up between 1790 and 1831. I am unable to accept this as a fair inference in the circumstances. The aggregate rent may possibly have been increased in the interval in one of the ways indicated in paragraph 9 of the plaint, though it seems more likely that the increase was brought about in more recent times since the older the increase, the greater the difficulty of appreciating how the plaintiffs' rent remained uniform as it has clearly done at the latest from 1831 (to go no further than the earliest receipt). The receipts produced on behalf of the plaintiffs speak of their predecessors' kismat (share) in the kheraj brahmottar or of their being kismatdars in the kheraj brahmottar; they do not specify the share, but from 1890 onwards it has been openly claimed against the landlords that the share is one-fourth. The plaintiffs' claim to a four-anna share in the kheraj brahmottar was negatived by the learned Subordinate Judge on two grounds (1) that the present aggregate rent was Rs. 15-7-6 and (2) that the plaintiffs were not able to establish how they came by the share claimed. The aggregate rent arrived at by the Assistant Settlement Officer is no ground for negativing the claim. If, as the learned Subordinate Judge himself observed, the payment of higher rents by the co-sharers of the plaintiffs does not establish the liability of plaintiffs' rent to alteration, the aggregate rent now payable cannot be any index of the plaintiffs' share in the mauza. The learned District Judge, who is the final judge of facts, has also accepted the evidence that “Ram Chakravarti, uncle and adopted father of the plaintiffs' predecessor Ramsundar Chakravarti, was one of four brothers who held the tenure and that Ram's four-anna share has now come to the plaintiffs. He also took into account the claims to a four-anna share openly made by the plaintiffs in the nineties of the last century with the landlords' acquiescence or failure to establish the contrary. The landlords do not appear at any time to have suggested what plaintiffs' share was, if it was not four-annas, nor have they suggested by what stages the aggregate rent came to be Rs. 15-7-6 against the Rs. 6-12-0 of Exhibit 5. Plaintiffs' share was thus not deduced merely from the fact that the rent of 1831 is one quarter of the figure found in Exhibit 5. It seems to me that in these circumstances the court of appeal below was justified in proceeding on the implied footing that the total rent of the tenure had not varied between 1790 and 1831 (or whenever it was that plaintiffs' share was separated) and that accordingly the plaintiffs' share in the kheraj brahmottar was four annas.

In my opinion the points urged on behalf of the appellants all fail; I would dismiss the appeal with costs.

Macpherson, J.:— I agree.

Appeal dismissed.