LAKSHAN CHANDRA MANDAL Vs. NARIM SARDAR

JUDGEMENT

(1.) This is an appeal by the landlords arising out of proceedings under Section 105, Ben. Ten. Act, in which they claimed enhancement of rent under Section 30 (b), Ben. Ten. Act, on the ground of rise in the price of staple food-crops and also under Section 52, Ben. Ten. Act, for increase in the area of the holding. The tenancy in question in this appeal was created by a kabuliyat executed by the tenant in March 1911. The case we are now concerned with was Suit No. 2343 of 1925 in the trial Court and Appeal No. 797 of 1927 in the lower appellate Court. The defence was that under the terms of the kabuliyat the plaintiffs were not entitle to claim any enhancement under Section 30(b), Ben. Ten. Act, as the rent was mukarrari. The trial Court did not accept this plea and on a reading of the kabuliyat was of opinion that the rent was not fixed and allowed enhancement under Section 30 (b), Ben. Ten. Act, at the rate of 2 annas, in the rupee. The learned Munsif also allowed enhancement for excess area which decision has not been questioned before us or in the lower appellate Court;. On appeal by the defendant the learned Special Judge of Khulna held on a construction of the kabuliyat that the rent was fixed in perpetuity and was not liable to be enhanced under Section 30 (b), Ben. Ten. Act. In this view he disallowed the plaintiff's claim for enhancement on that ground.

(2.) The landlords appeal and it is argued on their behalf that the Court of appeal below has put an erroneous construction upon the kabuliyat. The learned Judge has referred to some decisions of this Court in his judgment but it is indisputable that every case of this nature has to be decided on its own facts and upon the peculiar terms of the contract involved in it.

(3.) The kahuliyat in this case opens with the words which if translated will mean that the kabuliyat relates to "jamijama" which is not transferable with the further qualification that it is liable to enhancement and abatement. The appellants translate the expression "jamijama" as meaning the land and rent both being liable to enhancement and abatement. The respondents on the other hand translate "jamijama" as meaning holding with the qualification of its being liable to enhancement or abatement only with regard to the area. I do not think that such a restricted construction can be put upon these words; "jamijama is used to indicate land as well as rent or when taken together in the abstract it means rent-bearing tenanted land. The plain meaning of the above words seems to me to be that the rent of the tenanted holding is liable to enhancement or reduction. There is no jurisdiction for holding that the qualification that the holding is "liable to enhancement or reduction" should apply only to the area which is not very intelligible and not to the rent. This interpretation is supported by the other terms of the kabuliyat which are that the tenant may plant fruit trees on the land and enjoy the fruits of the trees that are on the land but they shall not cut or sell them without the permission of the landlord; they shall not construct any building, dig any tank on the land; they shall not be entitled to sell, mortgage or make any gift of the land to anybody; they would simply live on the land with their family and children. All these terms indicate that the lease is an ordinary lease of an agricultural holding without conferring any right to the tenants higher than what the law gives them.