PRASANNA DEB RAIKET Vs. ACHHRUDDIN MAHAMAD

JUDGEMENT

(1.) These two appeals arise from two rent suits which were decided by one judgment. A third appeal from the same judgment has abated. The landlord is the appellant.

(2.) The facts are as follows. There was a Record-of-Rights prepared and finally published. In it the respondents were shown as the owners of separate jotes, each jote bearing a separate jama. The landlord made an application under Section 105 of the Tenancy Act for the settlement of fair rents. Then one Osman Ali put in an application under Section 106 alleging that his jote and the jotes of the respondents formed part of a parent jote, which had been held at a uniform rate of rent for so long that the holders were entitled to the presumption arising under Section 50 of the Act. The respondents did not join in that application or make similar applications, but they were made pro forma defendants. The hearing of the applications under Section 105 was stayed until the disposal of the application under Section 106, and the reason alleged by the respondents for seeking a stay was that the case under Section 106 would dispose of the question whether the rents were fixed or not and this argument, I understand, was not challenged on behalf of the landlord. The application under Section 106 was dismissed for default, but later it was revived, and it was decided eventually in favour of Osman Ali. Unfortunately between the date of its dismissal for default and the order for restoration, the applications under Section 105 were taken up, and fair rents were fixed, such rents being higher than the rents entered in the Record-of-Rights. It is for these fair rents that the present suits have been brought. The Court of appeal below has held that the plaintiff cannot recover more than the old rents. The object of the landlord's appeals is to obtain decrees for the fair rents fixed in the proceedings under Section 105 of the Act.

(3.) It is argued for the plaintiff that these particular respondents made no applications under Section 106, that they might have appealed against the orders settling fair rents or applied for revision, and that the Revenue Officer's decision has under Section 107 the force and effect of a decree of a Civil Court in a suit between the parties. These criticisms are correct but I think we are entitled to go below the surface to actual position taken up by the parties. To my mind it is clear that by mutual consent the question whether the rents could be enhanced or not was to be settled in Osman Ali's application: and had the Revenue Officer been apprised of the fact that steps had been taken to have that application restored he would not have proceeded with the applications under Section 105. The fact that ha was not informed is not due to any fraud on the part of the landlord or any negligence on the part of the tenants, but to the confusion which inevitably results from the immense volume of work with which a Revenue Officer has to deal. Consequently the matter should be looked at from the position which the parties would have occupied if the true facts had been made known to the Revenue Officer.