R SCOTT MONCRIEFF Vs. NAIMUDDA JOWARDAR

JUDGEMENT

(1.) The first ground taken in special appeal in this case is that the Collector had no jurisdiction to try this case under Act X of 1859, as the land was not used for agricultural or horticultural purposes. The question of jurisdiction is now raised in special appeal for the first time, and we think it is taken at too late a stage of the proceedings. Certain cases have been referred to, in which it is said that the plea of want of jurisdiction was admitted in special appeal, although it was not urged in the Courts below. But in those cases the question of jurisdiction was clear upon the pleadings, or from the admission of parties. It is urged that in this case also the question of jurisdiction is patent upon the pleadings, for the suit is to enhance the rent of bastu land only; and bastu land is land used for sites of houses, and not for agricultural and horticultural purposes; and reference has been made to certain judgments of this Court, viz., Kalee Kishen Biswas v. Sreemutty Jankee 8 W.R. 251, Ranee Shurno Moyee v. Revd. C. Blumhardt 9 W.R. 553, Kali Mohan Chatterjee v. Kali Krishna Roy 2 B.L.R. Appx. 39, and to a Full Bench decision of the Agra High Court 3 Agra H.C. Rep. F.B. 52 to show that suits for enhancement of rent of lands of this description do not come under the provisions of Act X of 1859. It is admitted, however, that there is nothing in the pleadings to show that the land, which is the subject of this suit, is situated in a town, and it is only to the lands of this description that the judgments quoted apply. Bastu land, when it is a part of a ryot's jote or holding, is as much liable to enhancement as any other kinds of lands, and is equally liable to be dealt with as other lands under the provisions of Act X of 1859. There is nothing in the proceedings below to show that any question of jurisdiction was raised on the use of the word bastu land, and while we concur in the rulings which have been quoted to us, yet we think it is now too late in this case to admit this question of jurisdiction.

(2.) The second point taken in this special appeal is that the facts found by the Judge below are not sufficient in law to establish enhancement under clause 1, section 17, Act X of 1859. This may be disposed of with another objection, viz., that the Judge was wrong in saying that the defendant's deposition amounts to an admission of the rate of rent being rupees 5.

(3.) What the defendant says on being examined with regard to this land is, that the whole of it is bastu land, and that the rate of rupees 5 is prevalent. The Judge considers this statement, with the evidence regarding rates recorded in another case, which appears to have been disposed of at the same time, and be says, "the Court considers that there is evidence sufficient to show that rupees 5 is the prevailing rate for lands of a similar description held by ryots of the same class as the appellants." This finding meets all the requisitions of clause 1, section 17, Act X of 1859, but omits to find whether the land "is with similar advantages in the places adjacent," and it is urged for the appellant that the absence of these words renders it necessary that the judgment should be reversed. No doubt it would have been better had the Judge-made his judgment complete by the use of these words. But, looking at the finding of the Judge on this point, it appears to me very unlikely that he omitted to look to this point while considering the other points referred to in clause 1, section 17, Act X of 1859, though he has failed to state it distinctly. I do not think that the omission of these words is sufficient to justify a remand or reversal.