DIGAMBAR PAUL GHOSH Vs. TUFAZUDDI IJARADAR

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for rent. The claim in suit was for recovery of arrears of rent for the period from 1332 to1335 B.S., at the annual rate of Rs. 400, with damages. The defence of the tenant defendant was that the rent annually payable was Rs. 40. The case for the defendant before the Court was negatived by the trial Court, and a decree was passed in favour of the plaintiffs, with the exception of the claim for rent for the year 1332 B.S., the plaintiffs having realized the same; and as the case now stands, we are not concerned with the rent for the year 1332 B.S. On appeal by the defendant, the learned District Judge of Khulna reversed the de-wee of the trial Court, on a ground raised by the defendant in the suit for the first time in the Court of appeal below.

(2.) The learned Judge gave effect to the defendant's contention before him that the plaintiffs being occupancy raiyats, and the defendant an under-raiyat under the plaintiffs, who held at a rental of Rs. 21, the defendant by the operation of Section 48, Bengal Tenancy Act, as it stood before Act 4 of 1928 B. C. came into force, could not recover rent by suit any rate in excess of 50 per cent of the rent payable by the plaintiffs. The learned District, Judge, is, in our judgment, right in holding that Section 48 as enacted by the Act of 1928 cannot have retrospective effect, although the section as it stood before, was held to have such an effect, in accordance with the decisions of this Court in the case of Sitanath Mida V/s. Bashudeb Midda (1905) 2 CLJ 540 and in Gurudas Shet V/s. Nand Kishore Pal (1899) 26 Cal 199. The new Section 48, as it stands after Act 4 of 1928 came into operation, viz., when an under-raiyat is admitted to occupation of land, he shall, subject to the provisions of this Act, become liable to pay such rent as may be agreed on between himself and his landlord at the time of his admission, provided that the rent or rate of rent agreed upon shall not be less than the rent or the rate of rent payable by the raiyat to his landlord, cannot, in our opinion, be construed as having a retrospective effect. Under the ordinary canons of construction of statutes, something much more definite should be necessary in order to revive a right to recover rent irrespective of the previously existing restriction, or to affect the statutory disability of the raiyat to recover more than a certain percentage as this disability previously existed. The old Section 48 reads as follows: The landlord of an under-raiyat, holding at a money rent shall not be entitled to recover rent exceeding the rent which he himself pays, by more than the following percentage of the same, namely (a) when the rent payable by the under-raiyat is payable by a registered agreement, 50 per cent; and (b) in any other case 25 per cent.

(3.) In- the view of the clear words of the statute, the learned Judge in the Courts below is right in holding that the old Section 48, Bengal tenancy Act, applied in the case before us, in so far as the cause of action for the claim in suit arose before February 1929, when Act 4 of 1928, substituting the new Section 48 for the old Section 48 came into operation. In the above view of the case the claim for rent at the rate of Rs. 400 for the years 1333 and 1334 B.S. could not be allowed in the suit.