MAHIM CHANDRA GUHA DEB BARMAN Vs. SECYOF STATE

JUDGEMENT

(1.) The plaintiff-appellant in this appeal instituted the suit in which this appeal has arisen, prayed for a declaration that a raiyati jama held by him which was the subject of the litigation comprised an area of 117 drones odd of land and that the Record of Rights as prepared in the last revisional survey was incorrect and inaccurate; the main relief sought by the plaintiff in the suit was for a declaration that rent in respect of the raiyati holding was not liable to enhancement. The Secretary of State for India in Council was made a defendant in the suit, and the claim, as made in the suit, was contested by him. On the pleadings of the parties, one of the issues raised in the case related to the question whether the suit as instituted was barred by the provisions contained in Section 104-J, Ben. Ten. Act. On this part of the case, the plaintiff asserted that the suit was clearly maintainable in view of the provisions contained in Section 111-A, Ben. Ten. Act, and that the plaintiff was entitled to have the declaration prayed for, irrespective of Section 104-J. The scope of the suit, as indicated by the plaint filed in the case, regard being specially had to the nature of the relief claimed, has to be primarily looked at for the purpose of arriving at a conclusion on the point thus raised. In our opinion there can be no doubt that the question raised by the plaintiff in the suit, related to matters specifically enumerated in Clauses (d) and (e), Sub-section (3), Section 104-A, Ben. Ten. Act; and the general provisions contained in the last paragraph of Section 111-A, could not be invoked for the purpose of nullifying the effect of Section 104-H read with Section 104-J of the Act. The declarations prayed for in the suit related to matters specifically referred to in the Act in regard to which there was no right of suit unless the provisions of the law made in that behalf were complied with, which provisions involved the question of limitation. The main reliefs prayed for related to the question of area of the tenancy and to the question whether the rent payable by the tenant was liable to enhancement or not. . It was incumbent upon the plaintiff to proceed under Section 104-J, Ben. Ten. Act, if he wanted to have the question of area decided, and to have the question of rent settled by the Revenue Officers reopened. What was not attempted to be done by having recourse to the specific provisions laid down by law could not be allowed to be done by an indirect method of having a declaration under Section 111-A, Ben. Ten. Act. The civil Court would not be justified in granting a discretionary relief by way of declarations, if the remedy by way of consequential relief was unquestionably barred, and which consequential relief was the ultimate object of the relief prayed by way of simple declarations. In the above view of the case we are clearly of opinion that the learned Judge in the Court below was right in holding that the suit as instituted was not maintainable, regard being had to the provisions contained in Section 104-J, Ben. Ten. Act.

(2.) The trial Court has decided the question raised before it on the merits, and we proceed to give our decision on the points raised in support of the appeal, so far as the merits of the case were concerned. In the first place, the question of area as raised in the suit, could not possibly be decided on the materials before the Court. The plaintiff-appellant laid the blame at the door of the contesting defendant in the suit, as papers called for from the Secretary of State for India in Council were not produced in Court. We are unable to hold on the materials, that it was not possible for the plaintiff to place on record materials for the purpose of determining the question of area of the tenancy as raised by him. The lands comprised in the plaintiff's tenancy were not pointed out to the Revenue Officers at the time when revisional settlement was in progress; and the plaintiff was unable to specify the lands which had been omitted from his tenancy. In these circumstances, on the materials before us, the declaration relating to the area comprised in the plaintiff's tenancy could possibly be granted to him. The main controversy, in the case centred round the question whether the rent payable by the plaintiff was liable to enhancement or not. The position must.be recognized that the landlord had the right to enhance rent payable in respect of a tenancy, unless he was debarred from doing so.

(3.) The question to be considered on this part of the case was whether the entry in settlement records on which very strong reliance was placed on the side of the plaintiff- appellant could lead to the conclusion that the landlord had abandoned his right to enhancement: see Krishnendra Nath Sarkar V/s. Kusum Kamini Debi 1927 P C 20. There was nothing on the record which could lead to the inference that the rent payable by the plaintiff was not liable to enhancement. There was progressive rent for a certain number of years, and a maximum rent was mentioned which was to be in force for the last five years of the period of the existing settlement. There was no mention about the rent to be paid after the period of that settlement; and when there was the occasion for a revision of settlement, there could be no bar to the rent being enhanced as was done by the Revenue Officers. The trial Court has on the materials on the record rightly held that there was nothing tangible to show that the rent was fixed in perpetuity or that it could be so fixed in respect of lands situate in a temporarily settled area. Reliance was placed in support of the appeal on statements contained in a compromise petition filed in Court by some of the co-sharer landlords, that the plaintiff was a kaimi mokarari tenant. The statement contained in Ex. 9 (a) in the case was not a statement by the entire body of landlords, and any statement of that kind, even though made by all the landlords concerned, could not bind the revenue authorities, in the matter of settlement of fair and equitable rent under Section 104, Ben. Ten. Act. The plaintiff was recorded as settled raiyat, and not as a raiyat at a fixed rate; the fact that he was a settled raiyat did not imply that the rent payable by him could not be enhanced.