DURGA PRIYA CHOUDHURY Vs. HAZRA GAIN

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for arrears of rent at an enhanced rate, on the ground that the tenants are in occupation of more lands than those for which they have hitherto paid rent, The case for the plaintiff is that the rent at which the tenants hold was assessed on an area of 27 bighas 5 cottas and 8 chittacks whereas the area now in their occupation is 37 bighas 12, cottas and 8 chittacks. The plaintiff accordingly prays that rent may be assessed on the excess land and a decree made on that footing. the tenants deny that they hold any land for which additional rent can be assessed, and they contend that they are not liable to pay rent for more than 27 biahos 5 cottas and 8 chittackt. On these pleadings, the Court of first instance tame to the conclusion that the plaintiff was entitled to additional rent for additional lands. Upon appeal, that judgment has been set aside by the District Judge. In our opinion the decree made by the Disttrict Judge cannot be supported, as the reasons assigned by him in support of his conclusion are erroneous in law.

(2.) The District Judge has held that it is necessary for the plaintiff to prove the area of the holding at the time of the inception of the tenancy, and that as there is no evidence to prove the initial area, the plaintiff is not entitled to additional rent for excess land. This view is clearly erroneous. In order to determine whether the landlord in entitled to additional rent, the question which has to be solved in, whether the tenant is in occupation of land on which rent has not been assessed and for which he is bound to pay rent. The determination of this question may depend upon the consideration of a variety of circumstances. the tenant may he liable to pay additional rent, because since the date of the last assessment, be may have encroached on adjoining waste, or taken possession of accreted land. If be is in possession of such land, be is undoubtedly liable to have rent assessed thereon. On the other hand, if he baa not encroached upon the adjoining waste of his landlord or if no land has accreted to his hold kg, and if he is still in occupation of the holding which he held when rent was last assessed, he may be liable to pay additional rent if it is proved that rent was not assessed at a consolidated sum upon the entire area then in his possession but upon an assumed area or upon an area determined by measurement as the area in his possession. In support of this view, reference may be made to the cases of Rajhumar Pratap Sahay v. Ram Lal Singh 5 C.L.J. 538; Lakhi Narain Sarangi ; Srinibas Sarangi v. Sri Ram Chandra Ehunya 11 Ind. Cas. 212 : 14 C.L.J. 146 : 15 C.W.N. 921; Akbar Ali Mian v. Musammat Hira Bibi 15 Ind. Cas. 332 : 16 C.L.J. 182; Tiachmi Prosad v. Jag. mohan Lal 22 Ind. Cas. 594 : 18 C.U.J. 633 and Uma Singh v. Rai Tarini Prasad Bahadur 25 Ind. Cas. 532 : 19 C.L.J. 451.

(3.) Now, in the case before us, a question has been raised, whether there was or was not a measurement at the inception of the tenancy. Clearly this enquiry is not necessary for the determination of the case. It is sufficient for the plaintiff to establish that since the creation of the tenancy, rent has been assessed, that when rent was last assessed, the assessment was on the basis of a certain area and that the defendants are in possession of lard on which to rent was assessed at the lime. The District Judge has stated that beyond the oral statement made by one of the plaintiff s witnesses there is no evidence whatever on the record to show that the area was arrived at by actual measurement. But, besides this oral evidence, we have a jamabandi of the year 1859 which contains the following statement: the tenant (the predecessor in interest of the present defendant) holds in Mouza Khas Belballi on his own account in one plot Bharati land measuring 24 bighas 5 coitus according to the Rashi of 90 cubits, which is according to the standard measurement, 27 bighas 5 cottas and 8 chittacks," and that this land was assessed with rent at the rate of 10 annas, making the total rent payable Rs 17-2 10. Prima facie, this entry in the jamabandi shows that there was a measurement at the time with a standard of 90 cubits, and that rent was assessed at the rate of 10 annas. This entry in a paper prepared by the landlord is, no doubt, not binding upon the tenant, because he was not a party thereto, but it is admissible in evidence as a record, kept by the landlord, of the lands held by various tenants under him. If this document is shown to have been kept in the regular course of business, it is admissible in evidence. the District Judge has found that this document is genuine. We take it, therefore, that this implies that the document was made at the time when it purports to have been made, that is, in the year 1859. There is no force in the contention of the respondent that when the District Judge held that the document was genuine, he did not intend to hold that this was a record of contemporaneous transactions, and that the document might have been manufactured subsequently for the purposes of this litigation. We are of opinion that this could never have been intended by the District Judge. There is thus no escape from the conclusion that the question in controversy has not been approached from the various points which we have indicated and that the case requires reconsideration. The District Judge will first consider whether since the date of the last assessment of rent, land has been added to the holding by encroachment, accretion or in like manner. If this is answered in the negative, he will consider whether the rent was assessed at a consolidated sum for the entire tract in the possession of the tenant, whatever its area might turn out to be, or whether the rent was assessed on an area fixed by estimate or determined by measurement. If the rent was not fixed as a consolidated sum, the plaintiff is entitled to additional rent.