SATIS CHUNDRA MUSTAFI Vs. AMANULLA BEPARI

JUDGEMENT

(1.) THIS is an app9al by the plaintiffs against a judgment of the learned Additional Subordinate Judge of Rangpur, dated the 4th December 1914, reversing the decision of the Munsif of Gaibandha. The suit was brought to recover the rent due under a kabuliyat. The first Court decreed the suit. On appeal to the learned Additional Subordinate Judge, he reversed that decision. It has been found by the learned Subordinate Judge that the holding is an old holding and that the tenants have a right of occupancy in the land within the meaning of the Bengal Tenancy Act. The rent was originally Rs. 18, but for some reason which the learned Judge of the lower Appellate Court was not satisfied with--and he was also not satisfied as to whether the truth had been told to him--the cash rent was reduced in the kabuliyat sued upon to Rs. 12, but it was stated that the balance of the rent, namely, Rs. 7-14-0 was kept in suspense and would not be payable during the term of the kabuliyat, but that if the tenants fail to come to a new agreement as to the rent to be paid to the landlords at the expiration of the term, then a rent of Rs. 19-14 0 was to be payable. I do not know whether in this case it was stated that the suspense for three years was granted by the landlords owing to the charitable feeling that they bore to mankind in general and to these tenants in particular. But it is a matter for comment that no day practically passes before the Court, at any rate before this Bench, without leases of this sort being brought up in review. There can be little doubt that these leases are put forward by the landlords with intent to evade the stringent provisions contained in Section 29 of the Bengal Tenancy Act. It cannot be that a particular Bench of the Court should every day- have its attention called to cases where the landlord out of the good nature and kindness of heart has voluntarily reduced the rent for a few years owing to the poverty or other circumstances of the tenants and subsequently sues for rent at the original rate and the tenant litigates with his landlord on the terms of his lease up to the final Court of Appeal. The present case seems to me to be a perfectly simple one. The cash rent, the talabi jama, i.e., the rent to be paid is stated to be Rs. 18. Why the original cash rent was reduced to Rs. 12, no satisfactory explanation has been given. The story why Rs. 7-14-0 was kept in suspense has been totally disbelieved by the learned Subordinate Judge and there cannot be any doubt that the learned Judge meant to find that the rent payable under the terms of this kabuliyat was Rs. 12. Then it was pointed out by Mr. Gupta, who conducted the appeal on behalf of the tenant-respondents, that the condition for enhancement was purely in terrorem-- a, penalty held over the heads of the tenants--that unless the tenants should come to the landlords and enter into a new agreement satisfactory to the landlords, the rent would be enhanced from Rs. 12 to Rs. 19-14. That is, a method of enhancement which is altogether opposed to the terms of the Bengal Tenancy Act and such an enhancement, in my opinion, cannot be supported. I think in this case that the provision as to enhanced rent was merely one held in terrorem over the heads of the tenants to make them come to the landlords and enter into a new settlement and that it was only in the event of such settlement not being assented to by the tenants it was provided that the suspense rent should become payable. But that was merely an attempt to evade the provisions of the Bengal Tenancy Act and to enhance the rent in the manner prohibited by Section 29 of the Bengal Tenancy Act. In my opinion, the result arrived at by the learned Subordinate Judge is correct. The present appeal, therefore, fails and must be dismissed with costs. Richardson, J.

(2.) IN my opinion, there is a sufficient finding in the judgment of the lower Appellate Court that the true rent of the holding when the kabuliyat in question was executed was Rs. 12. If that be so, it is clear that the kabuliyat offends or is a device to evade the provisions of Section 29 of the Bengal Tenancy Act and is inoperative. The landlord cannot, therefore, without taking proper proceedings for enhancement recover rent at a higher rate than Rs. 12. I agree that the appeal must be dismissed.