HEMANTA KUMAR MITTER Vs. ANIL KUMAR BASU CHODHURY

JUDGEMENT

(1.) This is the Defendant's appeal arising out of a suit under Section 104H of the Bengal Tenancy Act. The suit relates to a tenancy which was recorded in Khatian No. 938 of mouza Jalaberia in the district settlement record. It has now been recorded in Khatian No. 990 of the same mouza in the recent revisional settlement. The rent of this tenancy has been shown in the present record of rights as Rs. 167-8-0 per annum, in place of the original recorded rent of Rs. 43-12 per annum. The Plaintiffs, who are the present tenants in respect of the above tenancy, claim that, having regard to its present area, the rent of the aforesaid tenancy, according to the terms of the relevant Pattah (Ext. 1) of the year 1281 B.S. corresponding to 1874-75, would be, at the fixed rate of fourteen annas per bigha, as stipulated in the said pattah, the amount of Rs. 49-0-9 per annum, and they bring this suit under Section 104H of the Bengal Tenancy Act for a declaration that the rent of the jama in suit, as recorded in the present revisional Settlement Khatian, namely, at the rate of Rs. 167-8-0 per annum, is wrong and illegal and for taxation of the same at Rs. 49-0-9 p. per annum, as aforesaid, in terms of the above Pattah.

(2.) The suit is resisted by the Defendant, who is the present landlord in respect of the above tenancy. His defence is that the rent, settled by the Settlement Authorities, is not illegal or incorrect, and, in any event, it is not advisable by the court and, further, that the Pattah (Ext. 1) in question, or the terms thereof, are not binding on him, he being a bona fide transferee of the landlord's interest for valuable consideration without notice of the said Pattah. The defence further is that the Plaintiffs' claim of permanent tenancy at a fixed rate is not tenable in law.

(3.) Mr. Dutta appearing for the landlord Appellant, contends, in the first place, that the suit lands form part of a tenancy, evidenced by the Defendant's Pattah (Ext. 1) which, on the. Plaintiffs' own evidence and admission, comprise lands of two mouzas, mouza Rupnagar and mouza Jalaberia of which mouza Rupnagar on the Plaintiffs' own evidence, again, as aforesaid, forms part of a permanently settled estate. In such circumstances argues Mr. Dutta the provisions or, rather, the implications, of Section 191 of the Bengal Tenancy Act, which might have otherwise precluded the Settlement Officer from ignoring or disregarding the Pattah (Ext. 1) in question, it being, admittedly of a date prior to the Bengal Tenancy Act, would not apply, although Section 104 and the other provisions, relating to settlement of rent in temporarily settled estates, would apply as on the admitted position, the settlement proceedings in question were in connection with the settlement of land revenue of inter alia the particular estate, to which the suit tenancy appertains. For this argument, Mr. Dutta relies on the terms of the said two sections and stresses the difference in their language. This particular point, however, that the suit lands form part of a tenancy, which comprises also lauds appertaining to a permanently settled estate, was not taken in the written statement and the further question that, because of that ground, Section 191 of the Bengal Tenancy Act or the implication, following there from, would not apply to this case, was also not raised in any of the two courts below. In the issues also and in the arguments, too, before the two courts below, not the slightest suggestion is to be found of any of the above arguments and, as a matter of fact, it appears clear that it was the defence, which relied on the said Section 191 in the two courts below, to support the recorded enhanced rental of Rs. 167-8 per annum.