KUMAR PRATIVA NATH ROY Vs. BONOMALI SARKAR

JUDGEMENT

(1.) These thirty appeals by the landlord, arise out of proceedings under Section 105 of the old Ben. Ten. Act. Six of these appeals Nos. 511, 513, 514, 516, 517 and 521 relate to occupancy holdings and the remaining 24 relate to tenures. In the cases relating to occupancy holdings it is argued generally that the Courts below were wrong in dismissing the plaintiff's applications for settlement of fair and equitable rent on the ground of rise in the price of staple food crops under Section 30, Ben. Ten. Act, in the view that the tenancies of the tenant in these cases did not constitute entire holdings within the meaning of Section 30. In Second Appeals Nos. 511, 514 and 516 the Revenue Officer had allowed additional rent for additional area. There were no appeals to the lower appellate Court from those decrees but yet the District Judge in his judgment referred to these cases. As additional rent for additional area was allowed in those cases only on the ground that in the kabuliyats executed by the tenants in those cases there was a stipulation for payment of additional rent for excess area, the learned Judge in view of some decisions, held that the enhancement granted under that section was illegal. Since there were no appeals to the learned Judge from the decrees of the trial Court in those cases by the tenants we do not think that the learned Judge had any jurisdiction in the matter and his order varying the decrees of the trial Court in those cases allowing additional rent for additional area to the plaintiff must be held to be wrong and the appeals in those cases should be allowed to that extent. No one appears in Second Appeals Nos. 511 and 514 but Dr. Pal appears for the respondents in No. 516 and he has fairly conceded that he cannot support this portion of the order of the learned Judge.

(2.) Then with regard to the general ground taken in all the appeals, namely, the lower Courts were wrong in holding that under Section 105, enhancement under Section 30, could not be allowed because the tenancies did not constitute entire holdings, we have been addressed at length and very ingeniously by Mr. Sen who has tried to induce us to hold that "land" in Section 105 includes part of a holding and thus to differ from a chain of decisions beginning with Hari Charan Bose V/s. Banjit Singh [1898] 25 Cal. 917n. His argument is that if the landlord brings a suit under Section 30 for enhancement of rent he must be the landlord of a "holding" as defined in Section 3, Clause 9, of the old Ben. Ten. Act as a parcel or. parcels of land held by a raiyat and forming the subject of a separate tenancy. But the learned advocate contends, in proceedings taken by the landlord under Section 105, Ban. Ten. Act where the word "land" is used instead of "holding" the Revenue Officer has the power to proceed on the principle of Section 30 even though the tenancy may consist of a share in a holding.

(3.) Reference in support of this contention has been made to the decision in Surendra Chandra Roy Choudhury V/s. Kedareswar Chowdhury to which I was a party. There following other decisions of this Court mainly the decision in the case of Safaraddi V/s. A. K. F. Huq [1915] 30 I.C. 414, I expressed an opinion though with some hesitation that the word "land" as used in Section 105 may include a share of a cosharer landlord and therefore includes a share of a tenant in a holding. This decision came for examination by my learned brothers Graham and Mitter, JJ., in Nagimamud Pramanik V/s. Idris Khan A.I.R. 1931 Cal. 303 and there Mitter, J. observed that the cases upon which I relied were not cases under Section 105, but the question in those cases was with reference to the applicability of Section 188, Ben. Ten. Act. That may be so, but in Safaraddi's case [1915] 30 I.C. 414, the tenant of a cosharer landlord had executed a kabuliyat in favour of that landlord in respect of his share of the land in the holding. That cosharer applied under Section 105 for settlement of fair rent in respect of his eight annas share covered by the kabuliyat of the tenant. No doubt objection taken there was that the application was barred under Section 188, Ben. Ten. Act. But that objection was overruled and the case was sent back to the trial Court for decision on such question on the merits as might arise. The only question that could be determined on retrial was whether the landlord was entitled to enhancement of rent either under Section 30 or Section 52. So it cannot be said that that case did not involve the consideration of the scope of Section 105. The result of the decision was that the Court was called upon to decide whether the landlord was entitled to settlement of fair and equitable rent which, in other words means enhancement either under Section 30 or Section 52. The decision in that case was by D. Chatterjee, J., and it was accepted in appeal by Jenkins, C.J., and N.R. Chatterjee, J. I do not think that that case has no bearing on the question now before us, whether "land" in Section 105, Ben. Ten. Act, does or does not include part of a holding. Mitter, J., has further relied upon Clause (4), Section 105, for the view which he has expressed in the unreported second appeals that the Revenue Officer is bound by the provisions of Section 39, namely, that he can only enhance rent in respect of an entire holding. Mr. Sen for the appellant has rightly pointed out that Clause (4), Section 105, speaks of "rules" that have been laid down in the Act for the guidance of civil Courts. Those rules are to be found in Secs.31, 32 and 33 as rules to be followed in allowing enhancement under Section 30. does not lay down any particular rule and therefore Clause (4), Section 105 does not seem to imply that the Revenue Officer has to follow the provision of Section 30 as one of the rules laid down for the guidance of the civil Courts. Though I do not agree with the view given by my learned brother Mitter, J., for disapproving of the view expressed by me in Surendra Chandra Roy Choudhury's case but on further consideration I am not now disposed to differ from the view which is the accepted view of this Court and the Patna High Court, namely, that if a Revenue Officer is invited to settle fair and equitable rent under Section 30 or 52 he has to apply the provisions of those sections to the holdings to which they apply i.e., the entire holding. This view has been recently expressed in Benod Kumar Boy V/s. Gangacharan A.I.R. 1930 Cal. 595, in which we said: In Section 105 the word used is land and it hag, sometimes been interpreted as including an undivided shire in a plot, The landlord may claim under Section 105 enhancement or settlement of fair and equitable rent under Section 52 but it seems that if the tenancy in respect of which additional rent is claimed under Section 52 is composed of an undivided share the claim will not be admitted under Section 105 also.