BRAJA DAS ROY Vs. BANKIM CHANDRA BHUIA

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiffs for enhancement of rent under Section 7 of the Bengal Tenancy Act. Record of rights was prepared with regard to this tenancy which was finally published on the 28 May, 1918. The record was that it was a kaimi tenure but not mokarari. The plaintiffs rely upon the record of rights sind ask for enhancement of rent. The defence, which it is now necessary for us to mention, was that the rent was fixed and not liable to enhancement. The Court of first instance found that the rent was liable to enhancement and fixed the rent which it considered to be fair and equitable. On appeal by the defendants they again urged that the rent was fixed and the learned Judge below has given effect to that contention.

(2.) In the plaintiffs appeal, the main argument addressed on their behalf is that having regard to the provisions of Section 115 of the Bengal Tenancy Act the learned Judge below was in error in holding that any presumption of fixity of rent arises on account of unvaried rent having been paid for 29 years prior to the institution of the suit. What the Judge says is this: In my opinion however having regard to the fact that the tenure has been described as kaimi the presumption as to the correctness o? the entry with regard to its not being mokarari has been rebutted by the admitted fact that the rent has not been varied since 1891, that is, for nearly 29 years prior to the institution of the suit.

(3.) It is necessary to mention that in 1891 a solenama was entered into between the parties where the rent was stated to be Rs. 43 and odd at that time. The learned Judge relies on a series of cases in which, apart from the provisions of Section 50, Sub-section (2) of the Bengal Tenancy Act, the inference was drawn as to the fixity of rent from long payment of rent at a uniform rate when the cases were not under the Bengal Tenancy Act. In our opinion it cannot be held in a case brought under the Bengal Tenancy Act that any presumption arises as to the fixity of rent from mere payment of the same rate of rent for. a number of years apart from the presumption arising under Section 50 of the Act. To hold otherwise would be to require every landlord to enhance the rent of every tenant under him at certain intervals of time which he might not himself desire to do.