JUDGMENT Mookerjee, J. - These ten appeals arise out of as many proceedings institute by the respondent for settlement of fair and equitable rents in respect of lands comprised in tenures held under him by the appellants. The tenants contended that their rents were not liable to enhancement u/s 6 of the Bengal Tenancy Act, as their tenures had been held from the time of the Permanent Settlement of 1793. The tenants proved, in support of this position, that they and their predecessors had held at a rent or rate of rent which had not been changed during the twenty years immediately before the institution of the proceedings. They accordingly claimed the benefit of the presumption formulated in section 50(2), and maintained, unless the presumption was rebutted, they were protect-ad from enhancement u/s 50 (1). The question thus arose, whether the landlord had or had not proved the contrary within the meaning of section 50(2).The Assistant Settlement Officer held against the landlord and dismissed the claim for enhancement. Upon appeal the Special Judge has reversed, that decision and bas granted enhancement. On the present appeals, the conclusion of the Special Judge that the landlord had rebutted the statutory presumption in favour of the tenants, has been assailed as erroneous in law. 2. To rebut the presumption, the landlord relied upon three papers, namely, first, a writ of attachment issued in 1792, Secondly, a writ of attachment issued in 1797 and, thirdly, a partition proceeding of 1800. The contention of the landlord is that as the tenancies held by the defendants are not mentioned in these documents, there is no escape from the inference that the disputed tenures were not in existence at the time of the Permanent Settlement. This raises two questions, namely, first, whether the documents are admissible in evidence, not to show that they contain entries establishing the existence of tenures, but to show that as they contain no entries about the tenures, such absence of entry implies their non-existence; and, secondly, that if the documents can be received in evidence for the purpose mentioned, whether the absence of entries necessarily justified the conclusion that the tenures were not in fact in existence. 3. Upon the first question, there has been some divergence of judicial opinion. 3. Upon the first question, there has been some divergence of judicial opinion. As pointed out in Bibi Imambundi v. Haji Motasuddi [1911] 15 C.L.J. 621 (624) and Imrtt Chamar v. Sirdhari [1911] 15 C.L.J. 7; 17 C.W.N. 108, the case of Queen v. Grees Chunder [1884] 10 Cal. 1024, and In the Matt of Juggun Lall [1880] 7 C.L.R. 356 assume that though entries in a book of account are relevant to the extent provided by section 35 of the Indian Evidence Act, such a book is not by itself relevant to raise an inference from the absence of any entry. The same view is supported by the observations of Lord "Robertson in Ram Pershad v. Lakhpati Koer [1902] 30 I.A. 1; 30 Cal. 231 : 8 A. Sar. 380. In Sagurmul v. Manraj [1900] 4 C.W.N. 207 (S.N.),it way ruled, however, that the cases just mentioned, did not decide that the fact of absence of an entry is no evidence at all under any section of the Indian Evidence Act, and that evidence that there is no entry in the account books, though not admissible u/s 34 may be admissible under sections 9 and 11. The question arose again before a Full Bench of the Allahabad High Court in Sadhu Sahu v. Raja Ram [1893] 16 All. 40 and the Judges were divided in opinion. The point may now be taken to have been set at rest by the judgment of the Judicial Committee in Imambandi v. Mutsaddi [1918] 45 I.A. 73; 45 Cal. 878 where the fact of absence of entry was held relevant, its effect to be determined in the light of the general evidence in the case. This fits in with the opinion expressed by Turner L.J. in Wise v. Bhoobun Moyee [1863] 10 M.I.A. 165 (174); 3 W.R. (P.C.) 5. In that case, reliance was placed on the fact that a disputed taluk was not mentioned in the decennial or quinquennial settlement as such; the relevancy of the circumstance was not questioned, but the Judicial Committee observed that even assuming the statements to be accurate, in the absence of particulars of the settlements, the fact did not seem to afford any strong inference against the existence of the taluk; see also Dwarkanath v. Huronath [1864] W.R. Gap. No. 238. No. 238. We hold accordingly that if the three documents are admissible in evidence, the landlord is entitled to utilize them for the purpose desired. This leads us to the question of the admissibility of the documents themselves. 4. As regards the writs of attachment issued in 1792 and 1797 it is plain that they must have been prepared when the Collector took possession of the zamindari upon default in payment of revenue by the proprietor. The documents may be relevant in connection with the history of the estate and may be used to show that the proprietor defaulted and the Collector went into possession. They may also be utilized to show that the Collector realized from the tenants the amounts stated during the period of his occupation; but there is nothing to indicate that the duty was cast upon the Collector to prepare a complete record of all the tenures then in existence. That the list of tenures contained in the attachment writs is incomplete has, indeed, been made out by comparison with the list in the partition paper presently to be mentioned. The Special Judge has in our opinion, correctly held that in view of the scope of the two attachment writs, no inference favorable to the landlord can be drawn there from, and they cannot be treated as relevant u/s 11 of the Indian Evidence Act. 5. We have next to consider what has been called the partition paper dated 1st September, 1800, which forms the real foundation of the judgment of the Special Judge. The original was not produced at the trial, and this has led to some controversy as to whether the certified copy filed could be received as secondary evidence of its contents. The certified copy itself was not perfectly legible and the correctness of the statement in the judgment of the Special Judge that the document had been signed by the Collector and Deputy Collector could not be verified. In these circumstances, we called for the originals of all the three documents from the Noakhali Collectorate. The dilapidated condition of the originals makes the examination of the contents by no means easy. The production of the originals however, removes the difficulty about the reception of secondary evidence, but the question still remains whether the partition paper is admissible in these proceedings against the tenure-holders. The dilapidated condition of the originals makes the examination of the contents by no means easy. The production of the originals however, removes the difficulty about the reception of secondary evidence, but the question still remains whether the partition paper is admissible in these proceedings against the tenure-holders. Our attention has been drawn to judicial decisions as to the admissibility of partition papers. But, as will be presently explained, they are not of real assistance in the absence of detailed information as to the history of the document mentioned, when it was prepared, by whom, in whose presence, and for what purpose. There is some diversity of judicial opinion, probably more apparent than real, as to the admissibility of documents of this description; this is traceable, in part at least, to an attempt to apply the same test to documents of different types. In Taru Patar v. Abina (1878) 4 Cal. 79 a jamabandi prepared by a Deputy Collector in the course of land settlement under Regulation VII of 1822 was held admissible as a public document. This decision has, however, been doubted: Ram Chunder v. Bunseedhur (1883) 9 Cal 741; Akshaya Kumar v. Shamma Charan (1889) 16 Cal. 586. In Saraswati v. Dhanpat (1882) 9 Cal. 431. Sir Richard Garth, C.J., appears to have ruled against the admissibility of such a document u/s 35, but this was not acquiesced in by Field, J. The opinion of Garth, C.J. was, on the authority of the decision of the Judicial Committee in Lekraj v. Mahpal (1379)7 IA. 63 - 5 Cal. 714 - 6 C.L.R. 593, repudiated in Shoshi v. Girish (1893) 20 Cal. 940; which was followed in Secratary of State v. Wazed Ali (1921) 34 C.L.J. 141; see also Anund v. Huronah (1865) 4 W.R. 6, whicherer view be adopted, it must be recognized that the question whether a document is admissible in evidence as a public document is fundamentally distinct from the question whether its contents are binding; upon tenants without proof of notice on them or of their consent. The decisions in Drobo Moyee v. Dhurmo Doss (1863)10 W.R. 197 and Gopal v. Madhub (1873) 21 W.R 29, emphasize this distinction. The decision in Khetra Nath v. Mahammud Alla (1918) 23 C.W.N. 48, which refers to the cases of Perma Roy v. Kishen (1897) 25 Cal. The decisions in Drobo Moyee v. Dhurmo Doss (1863)10 W.R. 197 and Gopal v. Madhub (1873) 21 W.R 29, emphasize this distinction. The decision in Khetra Nath v. Mahammud Alla (1918) 23 C.W.N. 48, which refers to the cases of Perma Roy v. Kishen (1897) 25 Cal. 90; Nandlal v- Mohunth Chanurpat (1913) 17 C.L.J. 462 - 17 C.W.N. 779, and Mchi v. Dhiro (1880) 6 C.L.R. 139 deals with the question whether partition chitta and map are admissible as public documents u/s 35. The Court, however, also emphasized the distinction we have pointed out, by reference to the decision in Gopal v. Madhub (1873) 21 W.R 29, and added the important observation that the law had been differently and more broadly laid down under the Bengal Estates Partition Act, 1897: Janki v. Kirtarath (1908) 13 C.W.N. 93. This had been previously explained in Juki v. Dino (1909) 2 IC. 367 where the decisions in Drobo Moyee v. Dhurmo Das (1873) 21 W.R 29 and Gopal v. Madhab (1918) 23 C.W.N. 48 were considered. To the same effect is the decision in Dinanath v. Nauabali (1918) 49 I.C 984. This accords with the decision of the Judicial Committee in Dinaj Deo v. Beni (1917) 28 C.L.J 1, where a register of rerenue free villages prepared by a revenue surveyor was held admissible u/s 35 to show the nature of a tenant s holding, in the absence of evidence indicating that the public officer had acted in excess of his official duty. It is consequently necessary that the history of the partition paper dated 1st September, 1800 should be fully investigated in all its aspects before the question of its admissibility is finally decided. But even if the document be received in evidence, the further question must be determined, whether it does in fact omit the lands of the disputed tenures. The mere circumstance that the names, by which the tenures are known at present, cannot be traced in the list does not show conclusively that the tenures are not included therein. As the Assistant Settlement Officer pointed out, the names of taluks are frequently changed as they pass from hand to hand, and very often a taluk is sub-divided whereupon new names are given to each of the fragments. As the Assistant Settlement Officer pointed out, the names of taluks are frequently changed as they pass from hand to hand, and very often a taluk is sub-divided whereupon new names are given to each of the fragments. Such sub division, it has now been held, does not affect the continuity of the tenure concerned or render inapplicable the provisions of section 50 of the] Bengal Tenancy Act ; see Krishna Kamini v. Nilmadnab (1922) 35 C.LJ. 382. Consequently, it cannot be inferred from the petition paper, without further enquiry, that the disputed tenures are really not mentioned therein. One possible method of enquiry may be to trace the history of all the tenures actually mentioned in the paper, and by the application of the method of elimination or exhaustion, to-establish that the disputed tenures are or are not mentioned in the document. We may add that even if it should be ultimately proved that the tenures are not mentioned, it would not necessarily follow that they were not in existence at the time; there may be cogent reasons to explain the absence, as pliable out by Teunon, J. in Bipradas v. Monorama (1917) 45 Cal. 574. Weight will obviously have to be attached to the statutory provisions for the partition of estates in operation at that time; and how far the proceedings did in fact conform to those rules, is plainly a relevant matter: Har Gopal v. Ram Gopal (1870) 13 W.R.381. It is we think abundantly clear that the cases require much fuller, examination than they have received or than what is practicable upon the materials on the record. The defect in the judgment of the Special Judge is due to an error as to the admissibility of evidence, and his findings can consequently be impeached in second appeal: Makund v. Gopi (1914) 21 C.L.J. 35 ; Nafar v. Shukur (1918) 46 Cal. 189. 6. Two minor points require a brief notice. It was argued, in the first place, that the partition paper indicates a variation in the rent, which, however slight, may rebut the presumption u/s 50. We are of Opinion that there is no force in this contention. A slight variation even though not explained does not deprive the tenant of the benefit of the presumption: Ramrutno v. Chunder Mookhee (1865) 2 W.R. Act X. 74. We are of Opinion that there is no force in this contention. A slight variation even though not explained does not deprive the tenant of the benefit of the presumption: Ramrutno v. Chunder Mookhee (1865) 2 W.R. Act X. 74. Koroona v. Shib Chunder (1886) 6 W.R. Act X. 50: Munsoor v. Bunoo (1867) 7 W.R. 282; Elahee v. Roopun (1867) 7 W.R. 284, which are really not in conflict with Prasanna v. Mohananda (1917) 40 I.C. 553. It was urged, in the second place, that four of the appeals had been lodged in this Court after the expiry, of the prescribed time and should be rejected on that ground. There is no substance in this contention. This objection arises in cases where copies of the judgment were not attached to the memorandum of appeal and the appellant was prima facie not entitled to deduction of time on that account. It must be remembered however, that these appeals could not have been brought in without copies of the judgment, until after the main appeal, had been lodged with complete sets of papers. In this view, the Court would without hesitation exercise in favour of the appellants its discretion u/s 5 of the Limitation Act. 7. The result is that these appeals are allowed; the decrees made by the Special Judge set aside and the cases remanded to the Court of first instance to be retried in accordance with law. Each party will be at liberty to adduce fresh evidence. The papers received from the Collector will be compared with the certified copies on the record, which will be amended, if necessary; this will be carried out by an officer of this Court, and the parties will be allowed to be present. If the parties so desire, they may at their own cost, also take, from this Court fresh certified copies of the papers received from the Collector. The originals will thereafter be returned to the Collector. 8. Costs in this Court will abide the result, the hearing fee in each appeal will be assessed at one gold mohur.