SATYA CHARAN LAW Vs. RAI MOHAN SIL DAS

JUDGEMENT

(1.) We propose to deal first with Appeals Nos. 410 and 2430 as the question in both these appeals turns on the construction of the same lease Ex. A. The appeals arise out of certain proceedings taken in the Court of the Assistant Settlement Officer of Khulna under Section 105, Ben. Ten. Act. The plaintiffs who are the landlords contended that they are entitled to enhancement of the rent of the tenures now in question. The defendants on the other hand contended that they are entitled to reduction of rent for reduction of area. The further question for determination before the settlement officer was what should be the fair and equitable rent of the tenure in suit. The settlement officer was of opinion that the tenure was not mukarrari and that its rent was enhanceable and he accordingly settled fair and equitable rent which was to take effect from Baisakh 1336. Two appeals were filed by the defendants tenants against the orders of the settlement officer in the two applications under Section 105 of the Act. The kabuliyat of both the tenancies is the same and is evidenced by Ex. A, and both the tenancies were said to have been covered by khatian No. 416. There has been some difference in the order in these two appeals. In one case the settlement officer has directed a remand for the purpose of determining the amount of abatement of rent. Prom that case Appeal No. 410 has arisen and the remand order is attacked on the ground that it was unnecessary, for according to the contention of the plaintiffs the tenancy is not mukarrari. In the other case the appeal was allowed by the Special Judge. Against that order S.A. 2430 has been preferred.

(2.) It will be necessary to set forth the material portions of the kabuliyat in order to determine whether the contention of the appellants that the tenancy is not mukarrari is sound or not. The Special Judge has held against the appellants and he has come to the conclusion from an examination of the terms of the kabuliyat that after the year 1297 B.S. the landlords- plaintiffs are not entitled to any enhancement of rent except under certain contingencies provided for by the kabuliyat. In para. 2 of the kabuliyat it is stated that out of 64 high as 18 cottahs 9 chittaks an area of 13 cottahs 9 chittaks of uncultivated land being deducted there remain 64 bighas 5 cottahs which the tenants say they possessed rent-free till 1294 and for which for the year 1295 they say they paid rent of Rs. 32-2-0 at the rate of 8 as. per bigha, for the year 1296, Rs. 84-3-0 as rent at the rate of 12 annas per bigha, and the kabnliat provides that from the year 1297 onwards we have agreed to pay the total rent of Rs. 64-4-0 at the full (purdastur) rate of Re. 1 per bigha according to the lasts mentioned below and will pay the same.

(3.) It is further stated that the tenants will not be entitled to raise any objection as to the payment of the said rent on the ground of flood, draught, diluvion, worm, famine, death or disappearance. In para. 3 of the kabuliyat it is stated that the land shall be measured from time to time and according to the measurement of the said land the tenancy will be liable to either enhancement or abatement of rent. In para. 4 it is stated that if on the settlement by Government the present rate of revenue is ever raised, then the tenants will pay from the time of the said resettlement the present rent plus an increment in proportion to the amount of revenue raised by the Government. In para. 9 the stipulation is as follows: I will be bound by all the provisions of the law relating to rent which is in force or will in future be enforced and I will act accordingly.