NARAIN CHANDRA DALAL Vs. MAHARAJA MANINDRA CHANDRA NANDI

JUDGEMENT

(1.) Two points have been argued in this case first, that the Judge was wrong in holding that the presumption of fixity under Section 50 of the Bengal Tenancy Act has been rebutted by the fact that the rent was increased from Rs. 3-3-0 odd to Rs. 3-4-0 odd and secondly, that he was wrong in holding that the defendant in this case had exceeded his rights under the law in building a suitable house for himself on a holding whatever its nature was.

(2.) With regard to the first point, we do not think it necessary to go into the matter in this case, as it seems to us that the finding of the learned Judge that there has been a variation at the time of the dakhil kharij, seems to be a finding of fact.

(3.) With regard to the second point, we think that the learned Judge is clearly wrong. Upon the learned Judge s own finding the defendant is an occupancy raiyat, and if he is an occupancy raiyat, then under Section 23 of the Bengal Tenancy Act he may use the land in any manner which does not materially impair the value of the land or render it unfit for the purposes of the tenancy. Now, the purpose of the tenancy was gardening. It is not found that the building of the house in question upon 1 cottah and a quarter out of 40 cottahs of land is in any way impairing the value of the land or rendering it unfit for the purposes of the tenancy, that is gardening.