SRISH CHANDRA PAL CHOUDHURY Vs. RAJANI KANTA BISWAS

JUDGEMENT

(1.) These three appeals arise out of three applications under Section 180-A, Ben. Ten. Act, by the tenants for determination, of uniform annual money rent in respect of lands held by them under the utbandi system. The defence of the defendant landlord was that the applications were not maintainable in their present form and that the prayers, of the tenants were not sustainable under the law. The landlord also alleged that the lands were very much improved by the excavation of a khal for flow of excess water at his cost. The learned Assistant Settlement Officer, after consideration of all the materials which were placed before him by the parties, held that the rate of Re. 1-2-0 per bigha would be the fair rent for the lands in respect of which no kabuliyats were executed by the tenants and Rs. 2 would be the fair rent per bigha for the lands in respect of which kabuliyats were executed by the tenants. Appeals were then taken by the tenants to the Special Judge. The learned Special Judge came to the conclusion that the nature and extent of improvements alleged to have been effected by the 1 an 1 o d by the opening of the khal could not be determined with any degree of precision. He was also of opinion that the fair and equitable rent should be determined irrespective of the question of any contract between the parties. Ho also held that the average of the amount that was actually paid as tent for the lands for the previous six years could not be determined as the papers filed by the landlord were not reliable.

(2.) The learned Judge then considered whether he could take into consideration any of the elements which are mentioned in the proviso to Clause 9 of Section 180-A, Ben. Ten. Act. The learned Judge, after examining the materials on the record was of opinion that Clauses (a), (b) and (c) were not sufficiently attracted in these cases. He was however of opinion that in fairness to the landlord the question of improvement should be taken into consideration and in fairness to the tenant the element of pachan should be considered in determining the fair rent, After taking these two factors mainly into consideration the earned Judge varied the rate fixed by the Assistant Settlement Officer by fixing Rupee 1-6-6 per bigha for kabuliyat lands and Re. 1/-for the non-kabuliyat lands. Hence the present appeal by the landlord. A preliminary objection was taken to the competency of these appeals by the learned advocate for the respondents on the ground that in view of the provisions of Section 180. A, Clause 15, Second Appeals to this Court are not maintainable, inasmuch as the Special Judge has only settled fair rent in these cases. In other words the contention is that the dispute in these cases being only about the amount of rent second appeal was barred under S, 180-A, Clause 15 read with Section 115(c), Ban. Ten. Act. From what has been stated above it is clear that in these cases there was no dispute about the status of the tenants or about the enhancibility or otherwise of the rent. There was no dispute also as regards the area for which the rent was to be assessed Consequently I am of opinion that the decision of these cases is only a decision about the amount of rent settled. See the unreported case in Badri Narayan V/s. Abdul Madal & Ors 1935 Cal 97 decided by this Court on 12 March 1931. The preliminary objection must therefore prevail. The appeals are accordingly dismissed.

(3.) Mr. Bose appearing on behalf of the landlord however prayed that these appeals might be treated as applications for revision in these cases. It was contended by Mr. Bose that the learned Judge has no jurisdiction under the law to take into consideration the pachan system in settling the amount of rent in view of the provisions of Section 180-A, Ben. Ten. Act. I am unable to accept this view of the matter. In settling the amount of fair rent, the Court is entitled to take into consideration the rate which is payable by these tenants, if a portion of their holding is kept fallow under the panchan system. It is argued by Mr. Bose that unless the area of the panchan land in each particular year be known, it would be inequitable to take panchan rate into consideration in settling the fair rent, inasmuch as the quantity of panchan land in the holding of each tenant might very from, year to year. I am unable to accept this contention and to hold that without a correct determination of the area of panchan land in each particular year, it would not be fair to the landlord to take the general rate for panchan land into consideration in fixing the annual rate of rent. I am therefore not inclined in view of the facts of these cases to interfere as I am not satisfied that there has been a failure of justice in these cases. The prayer for taking these appeals as applications for revision cannot therefore be entertained.