CHUNDY CHURN LAW Vs. BALARAM GOPE

JUDGEMENT

(1.) This is an appeal by the plaintiff--the landlord--against a judgment of the Special Judge of Tipperah, dated the 21 of March 1922. This appeal arises out of an application, made by the landlord under Section 105 of the Bengal Tenancy Act for a settlement of fair and equitable rent and also for additional rent for additional area held by the raiyats. The Only question which is now before us relates to the question as to additional rent for additional area claimed by the plaintiff.

(2.) It appears that the tenants, the defendants, held under a written and registered kabuliyat. The kabuliyat mentions the area for which the rent was fixed. The landlord after the Record of Rights had been prepared contended that the area now found was more than the area for which the defendants--the raiyats--were paying rent. The defence of the defendants was a total denial of the fact that the kabuliyat was executed after any measurement at all. They further contended that the standard of measurement adopted at the time of the initial measurement was not the standard of measurement which the plaintiff claimed but that the standard was different. No question it appears was raised that the area stated in the kabuliyat was inaccurate. The defendants did not raise the question that the area stated in the kabuliyat was arrived at by a measurement which was inaccurate. The Settlement Officer found that there was additional area. In calculating the additional area the Settlement Officer made a deduction from the area of 10 per cent.

(3.) On appeal the plaintiff challenged the finding of the Settlement Officer as to the deduction of 10 per cent. The lower Appellate Court in disposing of that contention stated as follows: "His next contention is that a 10 per cent, allowance for closeness of survey should not have been made in calculating the excess land where additional rent was allowed, firstly because that is not in the contract, secondly because the statement of area in the kabuliyat should be taken as an admission and conclusive against the tenant. There is force in these arguments but I cannot myself see why in interpreting the measurements, of the present settlement to discover excess area, the empiric rule laid down by the survey people themselves should not be followed. I accordingly agree herein with the lower Court."