K C DE Vs. HIRA BEWA

JUDGEMENT

(1.) In the suits out of which these appeals arise, the plaintiff sued the defendants for arrears of rent. It was the plaintiff's case that, at the inception of the tenancies falkar was assessed as part of the rent for the demised land. The case for the defendants appears to have been that the falkar in question did not form part of the rent of the holdings in suit but was realised by the plaintiff as an abwab against the will of the defendants. The learned Munsiff dismissed the plaintiff's claim on the ground that there was no contract for the payment of falkar between the parties at the time of the inception of the tenancies. The finding of the learned Munsiff was, however, reversed on appeal by the learned Subordinate Judge whose findings were: (1) that the defendants had paid the falkar just as regularly as rent since the inception of the tenancies; (2) that the falkar claimed had been in existence from the time of the inception of the tenancies; and (3) that these tenancies came into existence within the last 50 years.

(2.) The lower appellate Court, however, held that, inasmuch as the defendants had raiyati rights in their holdings, the landlord was not entitled to recover falkar having regard to the provisions of Secs.23-A and 178(h), Bengal Tenancy Act. When this case came before this Court on appeal on 25 May 1936 having regard to the fact that the judgment of the learned Subordinate Judge contained an inadequate discussion of the evidence in the case, I remanded the case to the lower appellate Court for a finding upon the following issues: "Was the falkar claimed a term of the tenancies at the time of their inception and has the landlord proved that he has realised falkar as rent from the tenants, since the inception of the tenancies in question?"

(3.) The matter has been further considered by Babu Jogendra Narayan Ray Chaudhury, Subordinate Judge of Midnapore, who after a very careful and exhaustive consideration of the evidence, has found that the falkar claimed by the plaintiff was a term of the tenancies at the time of their inception except in the ease of a tenancy in Suit No. 804 and he also found that the plaintiff had realized falkar as rent from all the defendants except in the case of tenancies covered by Suits Nos. 804, 770 and 778. The most important point for decision in connection with these appeals is whether or not falkar forms part of the rent of the demised land. With regard to this point the position taken by the respondents is that the falkar in question is in the nature of an abwab, that it was not one of the incidents of the tenancies at the time of their inception, and that during recent years, the plaintiff has been realizing falkar from the defendants against their will. It seems to be clear on the authorities that, if falkar was part of the consideration for the use and occupation of the land at the time of the inception of the tenancies, it must be regarded as part of the rent. With regard to this point it was pointed out by Chatterjea and Sheepshanks, JJ. in Upendra Lal Gupta V/s. Ataullah AIR 1917 Cal 737 that: The question whether any particular item is or is not an abwab must depend upon the construction of the contract of lease in each case and the question in each case is whether the sum claimed is really part of the rent agreed upon to be paid as consideration for the lease.