EJEL MULLICK Vs. FELAI MULLICK

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of arrears of rent for the period between the commencement of the year 1313 and the end of the first quarter of the year 1316. The plaintiff states that the defendant is in occupation of 22 bighas of land and is bound to pay rent therefor at the rate of Re. 1-8 per bigha, which is the prevailing rate for similar lands on the locality. The defendant contends that he holds only 15 bighas at n consolidated rental of Rs. 15-10 per year. The Court of first instance found that the defendant was in occupation of 20 bighas 11 cottahs 51/4 chhataks of land and made him liable for rent at the rate of Re. 1-8 per bigha, which was established to be the prevailing rate. In this view, the original Court gave the plaintiff a decree at the rate of Rs. 3-13-6 per year. On appeal by the defendant, the Subordinate Judge held that the plaintiff was entitled to vent at the annual rate of Rs. 22-8 calculated on the basis of a rate of Re, 1-8 per bigha on 15 bighas, which was staged in the case of the defendant as the area of his holding. The plaintiff has appealed to this Court and has contended that the decree of the primary Court should not have been varied in any way. In my opinion, the decrees of both the Courts are erroneous, but the plaintiff has DO grievance, as the Subordinate Judge has decreed in his favour a larger amount than what he is justly entitled to receive in the present suit.

(2.) The defendant holds under a kabuliat executed on the 1st April 1885. The material portion of the kabuliat is in these terms: "I take a settlement of 15 bighas of land as per boundaries at foot, lying within your purchased ganti jama, I will pay to you Rs. 15-10 in a lump as rent for the said land year by year, and I will continue to enjoy the profits thereof.... Bringing into operation future measurement and assessment, I will pay rent according to rent of adjoining lands." On an interpretation of this kabuliat three points are reasonably plain, namely, first, that the area of the land demised was assumed to be fifteen bighas without actual measurement; secondly, that the rent was assessed at the lump sum of Rs. 15-10 on the assumption that the area was fifteen bighas this indicates that the rates was Re. 1-0-8 per bigha; find, thirdly, that the landlord reserved his right to have the lands measured and the rent assessed at the prevailing rate. The landlord is consequently entitled to claim additional rent for excess land as also enhancement of rent. This, indeed, he is entitled to do under Section 52 and Section 80 respectively of the Bengal Tenancy Act. There is, however, a fundamental distinction between the claim for additional rent and the claim for enhancement of rent, which was not appreciated when the plaint was drawn up. As regards the claim for additional rent, it is well settled that the landlord cm claim back rent for additional area under Section 52 of the Bengal Tenancy Act, if such additional area was in the use and occupation of the raiyat: Jagannath v. Jamman Ali 29 C. 247; Assanullah v. Mohini Mohan Das 26 C. 739. On the other hand, if the landlord seeks enhancement of rent, the rent of the raiyat cannot be enhanced, as stated in Section 28, except as provided by the Bengal Tenancy Act; the Court is required by Section 154 to specify the date from which the decree for enhancement takes effect; Section 36 further empowers the Court to order progressive enhancement. It is consequently plain that a decree for enhancement of rent can never have retrospective operation and back rent cannot be claimed at enhanced rate in the suit in which enhancement is sought. The plaintiff has not framed this suit as one for enhancement of rent he has claimed arrears of rent at enhanced rate. This he cannot get, till rent has been enhanced in a suit appropriately framed for the purpose. He is, however, entitled to additional rent for such area in excess of fifteen bighas as may be found in the occupation of the defendant, and he can succeed in respect of such claim for a period antecedent to the suit. The defendant is thus prima fact liable to pay to the plaintiff, for the years in suit, rent at the rate of Re. 1-0-8 in respect of 20 bighas 11 cottahs 5 1/4 chattaks. This works out to a rate of Rs. 21-6-9, which is slightly lower than the rate allowed by the Subordinate Judge. I am not unmindful of the provision of Sub-section 3 of Section 52, which provides that in determining the amount to be added to the rent, the Court shall have regard to the rate payable by a tenant of the same class for land of a similar description and with similar advantages in the vicinity. The Court, however, is not bound to allow additional rent at the prevailing rate. In the present case though the prevailing rate is found to have been Re. 1-8 for some years past, the fact remains that the plaintiff has allowed the defendant to cord nine in occupation without any claim for advanced rent for nearly 25 years. It seems fair under these circumstances that the back rent claimed on the excess area, namely. 5 bighas 11 cottahs 5 1/4 chhataks should be assessed for the purposes of the present suit--and for that purpose alone--at the same rate as for the remainder of the holding. I hold accordingly that the Subordinate Judge should have decreed the arrears at the rate of Rs. 2-6-9 and not at the rate of Rs. 22-8 as ho lifts done, The decree made in tin s suit will not stand in the way of a suit for enhancement of rent of all the lands comprised in the holding on one or more of the grounds mentioned in Section 30 of the Bengal Tenancy Act.

(3.) The result is that the appeal fails and must be dismissed with costs. Beachcroft, J.