KHUNDAN LAL SINGH Vs. NAFIZUDDIN

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit instituted by them for enhancement of the rent of a tenure held under them. The plaintiffs are 16 annas darpatnidars of Mauza Saboodangi and that patni interest has been recorded in Khewat No. 2 of the record-of-rights. Within Mauza Saboodangi the defendants hold a permanent tenure comprising an area of 97.63 acres which is recorded in Khewat No. 7 under the plaintiffs at an annual rental of Rs. 106. The case of the plaintiffs was that this rental of Rs. 106 was not a fair and equitable rent and that they were entitled to an enhancement of this rent under the provisions of Section 7 of the Bengal Tenancy Act. They claimed an enhancement of Rs. 435-8-0 from Rs. 106, the admitted rental. The substantial defence of the defendants was that the tenure could not bear any enhancement and that the existing rental was a fair rental. The learned Munsif decreed an enhancement of Rs. 22-12-0 under Section 7, Clause (2) Bengal Tenancy Act. There was an appeal against this decree by the plaintiffs and a cross-objection by the defendants. The learned District Judge has upheld the decree of the Munsif.

(2.) In this second appeal the principal question for consideration is whether the income from the hat held on a portion of the tenure should be taken into consideration in assessing the fair rent. It has been found by the courts below that out of 97.63 acres of land which comprises the tenure, 66.08 acres and old parti lands, 7.98 acres are new parti lands, and 22.32 acres are cultivated lands and 1.25 acres comprises a road passing through the tenure. The Courts below have assessed the rent payable by the tenants to the tenure-holder at Rs. 5 per acre in respect of the cultivated lands and the new parti lands and they have assessed 6 annas per acre on account of the old parti lands, and they have found, after allowing a fair margin of profit to the tenure-holder, that the plaintiffs are entitled to an enhancement of Rs. 22-12-0 as stated above.

(3.) The hat in question was alleged by the plaintiffs to be held on 10.81 acres of land. A Commissioner was appointed by the Court below and he reported that the hat was a small one and it was held on a piece of land comprising 1.54 acres. This 1.54 acres was included in the old parti lands and a rental of six annas per acre was calculated for this land along with the other old parti lands. The plaintiffs contend that the tenure-holders are making a large profit out of the collections which they make from small holders and other persons who come to sell, their wares in the hat and also in some cases from the buyers of those articles, and their contention was that the profits which the tenure-holders derive from the hat ought to be taken into consideration in determining what amount of rent the tenure-holders receive, so that a fair proportion thereof may be allowed to the plaintiffs. Now the rights of the parties so far as the question of enhancement of the rent of the tenure is concerned are governed by the provisions of Section 7, Ben. Ten. Act. Sub-section (1) provides that the rent of a tenure-holder is subject to any contract between the parties, liable to enhancement up to the limit of the customary rate payable by the person holding similar tenures in the vicinity.