DHARANI MOHAN ROY Vs. RAJANI KANTA TARAFDAR

JUDGEMENT

(1.) The plaintiff is the appellant in this appeal. The appeal has arisen out of a suit which the plaintiff instituted for recovery of arrears of rent with cesses and damages for the years 1331 to 1334 in respect of certain lands and the claim was laid at an annual rental of Rs. 82 odd in plaintiff's eight annas share. Amongst the pleas that were taken on behalf of the defendants was a plea of suspension of rent on the ground of dispossession. The land which forms the subject matter of this suit will be found depicted in the settlement map as being bounded on the north by a khal and on the east by a river. The controversy between the parties as regards dispossession relates to two plots marked 602 and 603 on that map. These two plots also, as would appear on the map, were bounded on the north by the khal and on the east by the river. The defendant's case is that they have been dispossessed by the plaintiff in respect of these two plots, and inasmuch as the plots formed part of the original tenancy which was created by a kabuliyat Ex. A, so far back as in the year 1876, the plaintiff is not entitled to recover any rent from them.

(2.) The Munsif found that the said two plots were not covered by the kabuliyat. He accordingly found that there was no evidence to satisfy him that the plaintiff had dispossessed the defendants from any part of the rent lands. It seems that in the course of argument before the trial Court it was urged on behalf of the defendants that as these two plots had accreted to the rent lands, the defendants were entitled to possess them treating them as accretions, but that the plaintiff had prevented the defendants from doing so and that therefore there should be an order for suspension of rent. This argument also was overruled by the Munsif because he was not satisfied that the defendants ever attempted to possess the lands after they had accreted and further more because the defendants had been paying rent without protest for a long time ever after the lands had accreted. In this view of the facts, the Munsif held that the rent claimed in the suit should not be suspended. He then dealt with the question as regards the amount of rent that was to be decreed and relying upon the terms in the kabuliyat under which the contract had been created between the parties and which were to the effect that in case of increase or decrease in area of the lands covered by the kabuliyat as would be found on measurement by a particular standard the defendants would be liable to pay increased rent or would be entitled to abatement of rent and giving effect to these terms, the Munsif held that on the quantity of lands which would be found on such calculation, rupees 154-8-0 would be the rent for the 16 annas share of the lands and accordingly the rent in the plaintiff's eight annas share would be Rs. 77-4-0. From this, the Munsif deducted certain charges which under the terms of the kabuliyat the defendants would be entitled to and he came to the conclusion that the suit should be decreed at the rate of Rs. 57-15-0 per year as rent together with cesses and damages. That was the decree which the Munsif made.

(3.) From this decision, an appeal was taken by both the parties. In the plaintiff's appeal, the question raised was as regards the rate of rent that had been assessed for the lands. In the appeal which the defendants preferred they assailed the conclusion of the Munsif that there should be no suspension of rent. The Subordinate Judge allowed the defendants appeal and dismissed the plaintiff's appeal as well although ha was not prepared to record any conclusion upon the question that was raised therein. Indeed, it was not necessary for him to deal with the latter appeal because he came to the conclusion that the entire rent should be suspended and that this was not a case in which the ends of justice would be met by ordering a reduction or abatement of rent in respect of the portion of which the defendants had been dispossessed. The present appeal, as already stated, has been preferred by the plaintiff.