JATINDRA NATH RAHA Vs. UZIR SHEIKH

JUDGEMENT

(1.) The only point for determination in this appeal is whether the plaintiffs are entitled to enhance the rent of the holding of the defendants under Section 30(b) of the Bengal Tenancy Act. I he Courts below on a consideration of the kabuliyat Ex. 1 have come to the conclusion that by the kabuliyat a mokarari tenancy was created. The kabuliyat Ex. 1 has been placed before me. It appears that the lease in this particular case is not a lease from generation to generation. The words such as "Putra Poutradikrama" , that is generation after generation, as used in the lease which was under discussion m the case of Golam Rahaman Mistri V/s. Gurudas Kundu Chauduri 38 C.L.J. 350 : 76 Ind. Cas. 586 : A.I.R. 1923 Cal. 505, are not to be found in the present lease. The kabuliyat further indicates that at the time of survey and settlement the tenant would execute a separate kabuliyat and pay the rent which would be settled. This would be inconsistent with the rent being fixed in perpetuity. Further, the fact that the tenant would not be entitled to dig tanks and cut trees without the permission of the landlord would go to indicate that only un occupancy holding was in the possession of the tenant which was being confirmed by this kabuliyat. The learned Munsif has laid much stress upon the words "Abadharita" and "Dharjya". I am, however, inclined to think that these words by themselves do not mean fixed in perpetuity". They simply indicate the rent fixed or settled by the lease. It is now well settled on authorities that the landlord is entitled lo enhance the rent of a tenant unless he has expressly given up his right to enhance by contract. There is nothing in the lease Ex. 1 to show that the landlord gave up his right to enhance the rent in future. Under these circumstances I am of opinion that by Ex. 1 a mokarari tenancy was not created. The holding is only an ordinary occupancy holding and its rent is liable to be enhanced under Section 30(b) of the Bengal Tenancy Act.

(2.) The result, therefore, is that this appeal is allowed, the judgment and decree of the Courts below are set aside and the case is sent back to the trial Court for enhancement of rent under Section 30(b) of the Bengal Tenancy Act.

(3.) There will be no costs in this appeal as the respondent has not appeared.