JAGAT KISHORE ACHARYA Vs. KAMARUDDIN

JUDGEMENT

(1.) These appeals have arisen out of suits for realization of arrears of rent, brought by Raja Jagat Kishore Acharyya Chowdhury. The claim was made by the plaintiff in the suits for additional rent for excess area in the possession of the tenant defendants in the suits, on the basis of area recorded in the last cadastral survey, under Ch. 10, Bengal Tenancy Act. The plaintiff also claimed enhancement of rent on the grounds of a rise in the average prices of staple food crops, as also on the ground that the productive powers of the land held by the tenants have been increased by fluvial action. The points raised for determination in the suits, on the averments made in the pleadings of the parties, so far as the main controversy between the parties was concerned, were the following: Are the defendants holding any land for which they do not pay rent, and are they liable to pay additional rent for the same ? What was the standard of measurement when the lands in suit were settled? "What amount of increase, if any, is the plaintiff entitled to recover under Section 30(b), Bengal Tenancy Act ? Has there been any increase in the productive power of the lands due to fluvial action ? If so, to what increase of rent is the plaintiff entitled therefor."

(2.) The Munsif of Bajitpur gave his decision allowing the plaintiff's claim in the suits in a modified form. There were decrees passed for arrears of rent at as 12-6 per kani of 65 acre per kani, as per area ascertained in the settlement operations. The plaintiff was also allowed enhancement of rent at the rate of 8 as in the rupee, from 1333 B.S. It is to be noticed that the decision and decrees passed by the Munsif were based on the findings arrived at by him, that the unit of linear measure was to be taken to be 24 inches a cubit (hath), and not 18 inches as asserted by the plaintiff; and that the plaintiff was not entitled to any additional rent for excess area as contemplated by Section 52, Bengal Tenancy Act. The enhancement of rent under Section 32 was allowed by the Munsif, after comparison of prices as contemplated by that section, and after negativing the contention of the defendants that the lands comprised in the tenancies could not bear enhancement for reasons stated by them. On appeal the District Judge of Mymensingh has affirmed the decision of the trial Court, so far as the plaintiff's claim for additional rent for excess land was, concerned, but has reduced the enhancement allowed by the trial Court to 4 annas in the rupee. It may be mentioned that the learned District Judge accepted the plaintiff's case that the standard cubit prevailing in the pargana was one of 18 inches; but observed that whether a cubit of that length was actually used in working out the present areas was quite a different matter. The plaintiff has appealed to this Court.

(3.) The main question in controversy between the parties centred round the plaintiff's assertion that in the year 1891 there was a compromise arrived at as between the landlord and the tenants, by which rents were fixed at a certain rate per kani; so that if the plaintiff could show that any tenant defendant was in possession of more lands than he was paying rent for, the plaintiff was entitled to get additional rent for excess area, in view of the provisions of Section 52, Ben. Ten. Act. Reference is necessary in this connexion to the findings arrived at by the learned District Judge, bearing upon this part of the plaintiffs case. The learned Judge has in the first place mentioned that the plaintiff has really made no attempt to prove that there has been any actual increase: no evidence was given to show that any of the defendants had obtained lands by encroachment or otherwise, and has then found that no actual increase had been proved. The defendants knew that areas were entered in the plaintiff's papers, but they did not accept any measurement with reference to which the areas were stated. The lower appellate Court accepted the defendant's case that no actual measurement was made at the time when the compromise was effected in the year 1891, which was a compromise of a dispute in regard to existing rent, and not merely one relating to the rate per kani, and that the tenants never agreed that they would be liable to pay additional rents for the same land as the result of any future measurement. The Cadastral Survey measurements showed increase in areas, but did not necessarily show that the tenants were in possession of any land in addition to the land shown in plaintiff's papers, the identical land appearing to be greater in quantity on account of proper measurement. If there was no measurement at any time, or if there was no measurement which was accepted by the defendants, the rate per kani mentioned in the plaintiff's papers, standing by itself, could not be of any avail to the plaintiff, if the area was never ascertained on proper measurement, and accepted by the defendants. The learned District Judge has observed: a mere rate tells you nothing: in order to find out what the rent is, it is also necessary to know the area.