HEMANTA KUMAR MITRA Vs. MOHIT KUMAR CHAKRAVARTTY

JUDGEMENT

(1.) THIS is the plaintiff's appeal, arising out of it suit for inter alia, "a declaration that the defendants have not mokarari interest" in the suit land and a further declaration "that the plaintiff is entitled to realise from the defendants a sum of Rs. 571" as fair and equitable rent for the same. The suit arose under the following circumstances: at the time of institution of the suit, the plaintiff was the holder of Lot No. 37 (which was a temporarily settled estate in the Sundarbans) under the Government. This Lot was originally settled sometime in the year 1839, but the said settlement (grant) was forfeited and. thereafter, a fresh grant or settlement was made in 1849 for a period of 99 years. The plaintiff's father Kumar Manmatha Nath Mitra purchased the Lot from the then Lotdar Surendra Nath Dutt under a kobala, dated March 16, 1906, and, after the demise of Kumar Manmatha (which took place on September 16, 1934 ). the plaintiff, under and by virtue of a deed of settlement, executed by him (Manmatha) on August 24, 1934, became the owner of the said Lot on and from the said date, namely, September 16, 1934. The defendants and their predecessors were the holders of the present disputed tenure under the original Lotdar, Surendra Nath Dutt and, after him, under Kumar Manmatha, and, thereafter, under the plaintiff, under and by virtue of a patta, executed, as it appears from the records, in or about the year 1878 and 1879. Incidentally it may be pointed out here that the learned Subordinate Judge has accepted June 1, 1878, as the date of execution of the above patta and that date has not been disputed before us. We would, accordingly, proceed upon that footing.

(2.) UNDER the terms of the above patta, the defendants' said tenure appears to have had a Mourashi Mokarari character and the rent, mentioned therein, was Rs. 326-14-0 per annum. Later on, however, as appears to be the admitted position, this rent was enhanced or altered to Rs. 374-9-5 gandas p a. due to increase in area. In the District Settlement, which was made in or about the year 1929, the defendants' predecessor was recorded as the tenure-holder in respect of the disputed tenure at the above original annual rent of Rs. 326-14-0, the increase in rental, due to increased area, as aforesaid, having taken place thereafter, under the plaintiff's father with a remark that the said tenure was "permanent" but was "liable to enhancement of rent on the expiry of the 'present period'," this latter expression obviously meaning the period of settlement then current of the lot or the touzi in question. That settlement expired on March 31, 1948, and thereafter, a fresh settlement of the Lot was taken by the plaintiff on and from April 1, 1949. he having continued to hold over during the intervening period. The present suit relates to the status of the defendants and their rent during the period of this fresh or new settlement. For the purpose of this new settlement, there was a revisional survey and settlement operation by the Settlement Authorities and, in the draft revisional records, as it appears from the submissions, made before us, the rent of Rs. 571 per annum was recorded as the fair and equitable rent in respect of the defendants' above tenure, but, so far as the plaintiff was concerned, that interest was mentioned in the said records as Mokarari. It is really against this latter entry, which was confirmed on appeal by the Revenue Authorities, that the present suit was directed and the plaintiff made me consequential claim also of being entitled to realise rent at the enhanced figure of Rs. 571 p. a. , as recorded in the draft records as fair and equitable rent for the tenure in question.

(3.) TO the plaintiff's suit, the main defense was that, under the relevant patta, the defendants' tenure was Mokarari and the rent also, in accordance with the terms of the said patta, would not exceed Rs. 374-9-5 grandas per annum, in view of the area of the tenure, in terms of the said patta. The revisional settlement records were finally published during the pendency of the present suit which was instituted on October 25, 1949, and the date of final publication of the said records is December 21, 1950. In the finally published records, the defendants' status was recorded as Mokarari and the rent also appears to have been recorded at the figure of Rs. 374-9-5 gandas per annum, as admitted by the defendants, in terms of the patta, dated June 1, 1874, mentioned hereinbefore. The plaintiff endeavored to support his claim by alleging, inter alia, that the terms of the patta were not binding upon him -not, at any rate, after the expiry of the original settlement of 99 years of the Lot in question, namely, Lot No. 37, which expired on March 31, 1948, and he contended further that the fair and equitable rent, as settled by the Revenue Authorities in the draft record of rights, namely, the figure of Rs. 571 per annum, represented the proper rental of the disputed tenure and the plain if was entitled to realise the same.