PRANESH CHANDRA SEN Vs. BANWARILAL SHAHA

JUDGEMENT

(1.) The appeal as presented before me is confined to the portion of the plaintiffs claim in a suit for arrears of rant for the years 1322 to 1325 B.S. in so far as it is a claim for enhancement of rent based upon Section 30, Clause (a) of the Bengal Tenancy Act, that is to say, on the ground that the rate of rent) paid by the rah/at is below the prevailing rate paid by occupancy raiyats for lands of a similar description and with similar advantages in the same village or neighbouring villages and that there is no sufficient reason for his holding at so low a rate. The plaintiffs case was that the prevailing rates in the village and other neighbouring villages were Rs. 6-8 per pakhi of khad lands, Rs. 4-8 per pakhi of palan lands and Rs. 2 per pakhi of Fasli lands. The defendant's case was that the prevailing rates were Rs. 2-8 per pakhi of khad lands, Rs. 1-4 per pakhi of palan lands, and 4-annas to 8-annas per pakhi of Fasli lands. The plaintiffs alleged that the lands in suit were settled with one Ram Kishore the predecessor of the defendant in 1271 B.S. at an annual jama of Rs. 16-9 and that Ram Kishore was given a remission of Rs. 11-l for certain services rendered by him to the settles so that since then a rental of Rs. 5-8 was being paid for the lands but that there was no longer any reason to grant that remission. The defendant averred that the story of the settlement of the lands with the predecessor at a jama of Rs. 16-9 and of a remission of Rs. 11-1 being granted for services was false and he asserted that he and his predecessor had been holding the lands in kayami right at an annual jama of Rs. 5-8 from before the time of the Permanent Settlement.

(2.) In the trial Court, a Commissioner was appointed all the plaintiffs instance to ascertain the quantities and the qualities of the lands and, that having bean done, a Sub-Deputy Collector was deputed to hold a local enquiry and submit a report and, ha having submitted a report after such local enquiry, the same was accepted by the Court. The primary Court eventually found that the prevailing rates as found by the Sub-Deputy Collector were correct and that they were Rs. 6-8 per pakhi of khad lands, Rs. 4-8 per pakhi of palan lands and Rs. 2 per pakhi of Fasli lands and that those were fair and equitable. As to the plea of kayami right set up on behalf of the defence, that Court; found that it was false and, in that view of the matter, so far as this part of the claim was concerned, the Court made a decree granting an enhancement to the plaintiffs to take effect from the year 1329 B.S.

(3.) On appeal by the defendant, the learned Subordinate Judge held that the prevailing rates had not been established as payment, of rent at) these rates had not been proved, and that the enquiry held by the Sub-Deputy Collector was not sufficient and no definite conclusions could be arrived at from the evidence of the witnesses who had been examined by the Sub- Deputy Collector. The observations which the learned Subordinate Judge made with regard to this matter run thus: " Under these circumstances, I must hold that the prevailing rates of rent have not been properly ascertained. The question now arises whether I should remand the case which has already been pending for a long time. A full enquiry would entail heavy costs. The proper course, in my opinion, is to disallow the plaintiffs claim for enhancement on the ground of prevailing rates in the present suit but to leave the plaintiffs free to claim enhancement on this ground in future when they might come prepared with fuller materials." As to the story of the jama having been fixed at Rs. 16-9 and of a remission of Rs. 11-1 being granted, the learned Subordinate Judge was of opinion that he was unable to accept the plaintiffs version to the effect that it was a remission meant to be only of a temporary character and he observed as follows :-But I do not mean that the rent of Rs. 5-8 was necessarily intended to be fixed in perpetuity. This rent was almost exactly one-third of the full rent according to the plaintiffs case. So I order that this proportion of remission should be maintained for all time and, if any enhancement is to be made on the basis of the prevailing rates, the rent of this holding should be one-third of the full rental according to those rates."