HAREY HAREY SINHA CHOWDHURY Vs. SARADINDU NARAYAN RAY

JUDGEMENT

(1.) This appeal arises out of an application made by the landlord Under Section 105, Ben. Ten. Act, for settlement of a fair and equitable rent. The plaintiff's claim was resisted by the tenant defendant on the allegation that the holding in question was a mokurari one and that the rent was not liable to any enhancement and in support of this allegation the defendant filed a number of dakhilas the earliest of which was of the year 1248 B.S. and the latest of 1335 B.S. On the strength of these dakhilas the tenant claimed the presumption Under Section 50, Ben. Ten. Act. The Assistant Settlement Officer as also the special Judge refused to consider these dakhilas holding that Section 115, Ben. Ten. Act, operated as a bar and the Courts below in that view of the matter gave an increase of two annas and three pies in the rupee to the plaintiff, landlord. The defendant-tenant is the appellant before us. The order of refusal of the Courts below to consider the dakhilas filed by the tenant-defendant cannot, in my judgment, be sustained. It is true that in the year 1907 there was a petty settlement of an area of land within which the holding in question lies under the provisions of Chapter 10, Ben. Ten. Act, and it is true also that there was a finally published Record-of-Rights prepared in that petty settlement. Under those circumstances Section 115, Ben. Ten. Act, no doubt precluded the presumption that might arise in favour of the defendant Under Section 50, Ben. Ten. Act. But Section 115 cannot be said to preclude also other proofs of fixity of rent and it was the case of the tenant-defendant that the rent of the holding was fixed. That being so, the lower appellate Court, in my opinion, was not justified in refusing to consider the dakhilas that were filed by the tenant-defendant.

(2.) There were two courses open to us. One was to remand the case to the Court below for the consideration of the dakhilas filed by the defendant and on a consideration thereof come to a decision on the point whether the rent of the holding was fixed or not and the other course was to consider the dakhilas ourselves and to come to our own decision on the point. In view of the fact that the suit had been instituted so long ago as 1929 it was the second course which commended itself to us, and we have given full consideration to the dakhilas which were produced in the case. Now the question is whether from the dakhilas that had been produced in this case one can come to the conclusion that the rent of the holding in question is fixed. After giving our best consideration to these dakhilas we have been unable to come to the conclusion that the rent was fixed. According to the case of the defence there had been a number of jamas with fixed rents until the year 1316 B.S. when there was an amalgamation?amalgamation of the component jamas?and there was another amalgamation of 12 component jamas in the year 1335. Out of these component jamas there are only three of them, one of Rs. 2-12.0, another of Rs. 2-10-8, and the third of eight annas and six pies in respect of which there bad been filed five to ten dakhilas showing the same amount of rent. No doubt the earliest dakhilas for two of these jamas are of the year 1248 and for the third of the year 1285.

(3.) But it would, in my opinion, be a very violent inference to draw merely from the fact that there were five, seven or ten dakhilas extending over a period of nearly 80 years, that for this long period of time the rents of these jamas had all along been the same. There is besides the fact that when in the year 1316 these small jamas were amalgamated with others, some of which were very much bigger than them, these three jamas practically lost their identity with the result that they altogether ceased to exist. In this view of the matter we are unable to hold that the dakhilas filed by the defendants were of any help to them in establishing that the holding in question was one of fixed rent and as the plaintiff-landlord had the entry in the Record-of-Rights in his favour the presumption in his favour cannot but be held not to have been rebutted in the case. For the reasons recorded above the appeal, in my judgment, must be dismissed and it is accordingly dismissed with costs, the hearing fee being assessed at one gold mohur. M.C. Ghose, J.