MAHAMMAD MOYENUDDIN BASUNIA Vs. BAHARUDDIN CHOUDHURI

JUDGEMENT

(1.) The only question involved in this appeal is whether the finding of the Court of Appeal below that the defendants are liable to pay additional rent for additional area is correct. The plaintiff landlord brought a suit for recovery of enhanced rent on the ground of excess area as well as under Section 30 of the Bengal Tenancy Act. The First Court decreed the suit; but on appeal the learned District Judge dismissed the plaintiff's claim under Section 30, Bengal Tenancy Act maintaining the order of the First Court for additional area. This appeal is by the defendants and it is argued that the learned Judge has erred in law in holding that the defendants are liable to pay enhanced rent for the additional area. The learned Judge has found that there has been a uniform payment of rent for more than 50 years, that the presumption raised by Section 50 has not been rebutted, that it is not known how the lands were first let out or what were their boundaries at the time, jamas were created, that there is no evidence to show when the jamas were created and what were the areas of the several plots, that there is no evidence to show that the lands were ever measured, that it is clear that the same rent is being paid for nearly half a century and that there is nothing to show that the tenants ever agreed to pay enhanced rent for increase in area. After recording all these findings in favour of the tenants the learned Judge observes that as area was mentioned in the dakhilas; it gave indication of the areas which were let out and that "the uniform mention of the areas all through go to indicate that area was the criterion." What the learned Judge means to say is that the fact that area was mentioned in the dakhilas and had been so uniformly mentioned is sufficient indication of the fact that the original letting was with reference to the area. The appellant argues on the authority of several decisions of this Court that this view is incorrect. Reliance is placed on the case of Manindra Chandra Nandi V/s. Kaulat Shaik 79 Ind. Cas. 852 : 50 C. 957 : 28 C.W.N. 264, (1924) A.I.R. (C.) 374, where after reviewing almost all the cases on the point Rankin, J., came to the following conclusion: "I take it to be the settled rule of this Court that when a letting upon the basis of a measurement is proved the tenant has prima facie to show that the rent was a consolidated rent for all the land within specified boundaries but that in the absence of such proof the mere production of such dakhilas as those now in evidence does not suffice to show any onus on the tenant." He has followed the dictum of Prinsep and Bevorley, JJ., in the case of Gouri Pattra V/s. Reily 20 C. 579 : 10 Ind. Dec. (N.S.) 392, where it has been said that "the mere fact that on a measurement made... under the authority of Government given under Ch. X of the Bengal Tenancy Act, it is found that the tenants generally are in possession of lands in excess of the areas entered in the zemindari papers and their rent receipts does not necessarily prove that he is entitled to additional rent for the excess areas." The law then may be taken to be that under Section 50 of the Bengal Tenancy Act the initial onus lies upon the landlord to prove that the rent of the tenancy is liable to be enhanced on the ground of additional area. This onus may be shifted by proving the origin of the tenancy or a contract or by other mode of proof showing the right of the landlord to enhance the rent on that ground. The cases that have been cited show that the onus is not shifted by merely producing dakhilas which mention the areas for which rent is paid. We are asked by the respondent to differ from the case of Manindra Chandra Nandi V/s. Kaulat Shaik 79 Ind. Cas. 852 : 50 C. 957 : 28 C.W.N. 264, (1924) A.I.R. (C.) 374 on the ground that the finding of the learned Judge that uniform mention of areas goes to indicate that the original letting was with reference to the area is a finding of fact which cannot be disturbed in second appeal. We would have given our best consideration to this argument if the matter were res Integra, but we are not at the present moment prepared to differ from the decisions of this Court. In the present case the finding of the learned Judge that the plaintiff is entitled to enhancement of rent for increase in area is based upon the dakhilas alone. There is no other evidence on which reliance has been placed. We accordingly think that the view taken by the learned Judge is against the rulings of this Court and cannot be supported.

(2.) The result is that this appeal is allowed, the decree of the lower Appellate Court set aside and that of the Court of first instance with costs in this Court and the lower Appellate Court.

(3.) There is a cross-objection filed on behalf of the respondent against the finding of the. Judge that a certain kabuliyat executed by the defendants in 1308 was a confirmatory lease. The contention is that that lease was the origin of the present tenancy of the defendants. Both the Courts below have concurred in finding that it was not the lease by which land was let out to the defendants but it was a confirmatory lease. It appears from the lease itself that the land was in possession of the defendant's father as a tenant and that after his death the defendants executed the lease to obtain recognition by the landlord. The concurrent finding of the Courts below cannot be disturbed either on law or on the merits. The cross-objection is accordingly dismissed but without costs.