AMBIKACHARAN DAS Vs. BASANTKUMAR MANDAL

JUDGEMENT

(1.) This appeal must be dismissed and for the following reasons: It arises out of a suit for enhancement of rent in respect of a tenure, the incidents of which are governed by a patta and a kabuliyat, covering 240 bighas, of which the jama was settled at Rs. 270, at the rate of Re. 1-2-0 per bigha. The point for our decision is what is the effect of the terms used in the two documents. The patta and kabuliyat are in identical terms. The landlord states that although the tenure in question is a permanent and heritable one there are no words in the kabuliyat or patta, which could be construed for the purpose of holding that the rent was fixed in perpetuity and could not be enhanced.

(2.) Now, it appears to be clear from the documents that the land in question was at the inception, full of jungle. That is a circumstance which must be borne in mind for the purpose of determining the point which has now arisen. It follows that the tenant must have been exposed to considerable worry, trouble and expense in bringing the land under cultivation and in consideration of this circumstance it is reasonable to conclude that the tenant would not have been content with anything less than an assurance that the rent which he was going to pay would not be enhanced. Of course, the circumstance that the land was full of jungle is not, by itself, conclusive, but it is a circumstance which has to be taken into consideration along with the rest of the words used in the kabuliyat. In the second place, as is indeed admitted by the landlord, the tenure is a permanent and heritable one. The words used in the kabuliyat are that it is to be held from generation to generation. Now, is the tenant right in saying that the land was to be held from generation to generation at a fixed rate mentioned in the documents, or is the landlord right in saying that although the rent was ascertained at the time when the tenancy commenced, there was and there is no such fixed rent as is contended for by the tenant and that the landlord's right to claim enhancement, under the provisions of Section 7, Ben. Ten. Act, has not, in any way, been trenched upon ? Then again, in connexion with this question, reliance is placed by the tenant upon the expression nirdharita , which occurs in several places in the patta and kabuliyat. In the context, wherein this expression occurs, the tenant argues that the intention was that, after the rent had been ascertained at the time of the inception of the tenancy, it was to remain fixed so long as the tenant remained in occupation of the land. In this connexion, reliance is placed upon the judgment of Mookerjee, J., in the case of Golam Rahaman Mistri V/s. Gurudas Kundu Chaudhuri A.I.R. 1923 Cal. 505. Now, although Mookerjee, J.'s judgment, on the meaning of the expression nirdharita , has been criticised with great vigour by the learned advocate for the appellant, we are by no means convinced that the criticizm is sound or that Mookerjee, J., made a mistake in construing the word in the case referred to above. The tenant however places very strong reliance upon other circumstances referred to in the kabuliyat. In this document it is stated that, in case it was found by measurement that there was any excess in the area demised to the tenant, the rent to be assessed, in respect of such exce33 area, should be " at the aforesaid rate," that is the rate of Re. 1-2-0 per bigha mentioned in the kabuliyat itself. The tenant argues that the significance of this statement must not be overlooked. It cannot be, according to the tenant, that the rent for the excess area, should there be any such, was to be assessed at; the rate mentioned in the kabuliyat and that the rent in respect of the area originally demised should not be treated as a fixed one, but could be enhanced from time to time at the instance of the landlord. Now, the circumstance, referred to above, has in the events which have happened, a special significance. This question has been lately before us and, in our opinion, the tenant can very rightly argue that the clause, as regards additional rent, at the original rate, for excess area, lends considerable support! to the view that the intention of the parties was to fix the rent in perpetuity. A contract, very similar to this, was considered by this Court in the case of Chandicharan Law V/s. Azizernessa Second Appeals Nos., 1886 and 1887 of 1919, decided on 11 January 1922 by Chatter-joa and Panton, JJ. The learned Judges observed: The word mukarrari has not been used in the document and there is no express provision in the document that rent shall not be enhanced. But there is some indication in the document to show that the parties did not intend that there should be an enhancement of rent. The kabuliyat provides that if there was an increase in the land on measurement, the tenant would have to pay rent separately for the excess area, at the rate stipulated in the kabuliyat. That shows that the rent was a fixed one, because it could not have been intended that the tenant would pay for the excess area at the rate stipulated in the kabuliyat and at the same time would have to pay at an enhanced rate for the original area mentioned in the kabuliyat.

(3.) This observation applies with very great force to this case. As already referred to the lease is a permanent one, and though there is no presumption that a permanent lease must at the same time be mukarrari, it does not require any great straining of language to hold that, (though it does not mention the word "mukarrari", the cumulative effect of the words used in the document is such that one may reasonably conclude that the intention of the parties was to create a permanent lease at a fixed rent.