BADRI NARAYAN CHETLANGIA Vs. ABDUL MANDAL

JUDGEMENT

(1.) Those are three appeals by the defendant landlord in throe suits which were instituted by three sets of utbandi tenants for fixing a "uniform annual money-rent under Section 180-A, Ben. Ten. Act. In the trial Court the three suits were tried together. In the lower appellate Court the appeals arising out of the three suits were heard together and they have been argued together in this Court. The trial Court upon consideration of all the evidence fixed the annual rent at Re. 1-4-0 per bigha. The District Judge in appeal affirmed the decree of the trial Court. The defendant landlord appeals to this Court and the main ground is that the Courts below were wrong to fix the annual rent at Re. 1-4-0 per bigha and that on a proper consideration of the facts and circumstances they should have fixed the rent at a higher sum per bigha. A preliminary objection has been taken by the learned advocate on behalf of the tenants respondents that no appeal lies in this Court inasmuch as the decision of the Courts below was merely a decision settling rent. Section 115-C, Ben. Ten Act, provides that an appeal shall lie to the High Court from a decision of a Special Judge in any case (not being a decision settling rent) which is a Court subordinate to the High Court within the meaning of Section 100, Civil P.C. It is clear from the wording of that section that no appeal lies to this Court from a decision settling rent. The rulings in Midnapore Zamindary Co., Ltd. V/s. Sridhar Mahata 1922 Cal 152, Sarat Chandra V/s. Taraprasanna 1923 Cal 141 and Nafar Chandra v. Bhiku Sheikh 1931 Cal 550 have been quoted by the learned advocate for the appellant to show that under certain circumstances there is an appeal from a decision settling rent.

(2.) The decisions in the cases cited show that where the fundamental question involved in a case is as to the status of a tenant whether he holds the land at a fixed rent or at a rent liable to enhancement or where there is a dispute between the parties as to the question of area upon which the rate of rent is to be calculated it is only in such cases that an appeal lies. The learned advocate for the landlord appellant has argued that in this case though there is no dispute as to area or whether the tenant is a mokurari tenant or his rent is liable to enhancement yet in deciding the question of rent the Courts considered for how long the tenants who were recorded in the cadastral survey settlement records as occupancy-raiyats had in fact held their tenancy as occupancy-raiyats. I am of opinion that a mere decision of the question for how many years these utbandi tenants had been occupancy-raiyats will not make the decision an appealable decision. In my opinion, the preliminary objection prevails and no appeal lies in this case. Having however heard the learned advocates in detail we think that we should express our opinion on the merits of the case.

(3.) It was argued in the first place that the Courts below were wrong in holding that the increases of rents made in 1311 1312 and 1313 were illegal enhancements. It is urged that under Section 180 an utbandi tenant is liable to pay such rents for his holding as may be agreed on between him and his landlord. From this it may be held that though the tenant was paying rent at Re. 1-1-0 per bigha in one year it is not illegal if he agrees to pay at Re. 1-7-0 per bigha in the second year and at Re. 1-14-0 per bigha in the third year. It appears that the learned District Judge was aware of the provisions of Section 180 and as a judge of facts he came to the conclusion that these increases of rent within two years from Re. 1-1-0 to Re. 1- 14-0 per bigha were unfair and inequitable and ought not to be taken into consideration in fixing the fair and equitable rent.