NUR AHMED Vs. RASIK CHANDRA MOHAJAN

JUDGEMENT

(1.) This is an appeal by the defendants in a suit brought by the plaintiffs for recovery of arrears of rent of an Etmam or under-tenure at Rs. 12-12-0 per year for the years 1341 and 1342 B.S. together with enhancement of rent under Section 52, Bengal Tenancy Act, with effect from the commencement of the period in suit. The trial Court decreed the suit at the unenhanced rate of Rs. 12-12-0 per year and dismissed the claim for enhancement. On appeal, the Subordinate Judge allowed the claim for enhancement and decreed the suit in full. This appeal is only against the enhancement allowed by the Subordinate Judge.

(2.) The main grounds taken in appeal are two: (1) that on the findings of the Court below, it cannot be said that the land held by the appellants is in excess of the area for which rent has been previously paid by them and (2) that in view of the Bengal Tenancy (Second Amendment) Act, 1939, the claim for enhancement under Section 52, Bengal Tenancy Act, cannot be decreed without certain additional enquiries which have been made compulsory by the Amending Act. The Amending Act provides that in determining in a suit under Section 52 whether there has been an increase in the actual area of the tenure or holding, the Court shall enquire whether the present areas of other tenures or holdings in the vicinity which were settled at or about the same time or on the same standard of measurement as the tenure or holding in suit show increases in area compared with the area originally settled similar to that alleged in respect of the tenure or holding in suit and if such increases are found to exist it shall be presumed that there has been no increase in the area of the tenure or holding in suit since the rent previously paid was settled. The Amending Act came into force on 24 August 1939, after the Subordinate Judge had disposed of the appeal before him; nevertheless, it is said, Section 3(1)(a) of the Amending Act makes its provisions applicable to the present suit. There have, of course, been no such enquiries in this suit as are required by the new sub- section.

(3.) As regards the first of these points the finding of the trial Court was that some lands of another Etmam or under-tenure had been wrongly included in the disputed tenancy. In arriving at this finding the Munsif relied upon a comparison of the Cadastral Survey and the Revisional Survey Maps. He considered that plots 2484, 2360, 2513, 2480 of the Cadastral Survey (1898) fell wholly or in part in plots 2020, 1746, 1898, 1899, 1901, 2009, 2010 and 2011 of the Revisional Survey (1931). The above Cadastral Survey plots were recorded at the time of that Survey as appertaining to another Etmam created by Ex. A, whereas the corresponding plots of the Revisional Survey have been recorded at the latter survey as appertaining to the disputed tenancy created by Ex. 1. The Munsif was therefore not satisfied that the excess area disclosed by the Revisional Survey in the disputed Etmam was not in reality part of the other and neighbouring Etmam for which rent was already being paid. On this aspect of the case the Subordinate Judge's findings are not clear. He does not appear to have reversed the Munsif's findings although he has allowed the claim for enhancement. Indeed, he appears to admit that there may have been some confusion: There may have been a confusion in this sense as between the Cadastral Survey and the Revisional Survey that there has not been complete consistence between them in showing exactly the same lands as appertaining to the same tenancy. Having regard to the facts of this case I do not see why the plaintiffs should be driven to another suit, etc., etc.