RAJ KUMAR DUTTA GUPTA Vs. RAMANI MOHAN KUNDA

JUDGEMENT

(1.) These two appeals arise out of two suits for rent. In the first Court the learned Judge held that the plaintiffs were kayami mourasi raiyats and the defendant was an under-raiyat and, therefore, they were governed by the provisions of Section 48, Bengal Tenancy Act, which provides that the landlord of an under-raiyat holding at a money rent shall not be entitled to recover rent exceeJiag the rent which he himself pays by more than the following percentage of the same : (a) when the rent payable by the under-raiyat is payable under a registered lease or agreement - 50 per cent; and (b) in any other case - 25 per cent.

(2.) He granted to the plaintiffs a proportionate decree in the suits. On appeal to the District Court the learned Judge held that the plaintiffs were tenure-holders and the defendant was a raiyat and hence he held that the provisions of Section 48 did not apply to the present oases. Farther, he held that, even if the plaintiffs were raiyats and the defendant an under-raiyat, still, as the plaintiffs were kayami mourasi raiyats, that is to say, raiyats holding at a fixed rate of rent, they were not governed by the provisions of Section 48, Bengal Tenancy Act. On those findings he decreed the appeals and allowed the plaintiffs claim in full. The defendant has appealed to this Court. The first argument which was addressed to us is that the question of status of the plaintiffs and the defendant is res judicata and, therefore, the learned Judge erred in holding that the defendant was estopped from saying that he was an under-raiyat and the plaintiffs raiyats. With regard to this question : the learned vakil would seem to argue that the question of the plaintiff and the defendant's status had been decided in some previous suit which had been fought up to the High Court. There is no reference whatever to this previous suit in either of the judgments of the lower Courts and for a good reason, that no such judgment has been filed or exhibited in the case. There is on the record a judgment of this Court, but whether it refers to the lands of the present suits is not apparent. Neither, as far as I can see, does this judgment determine the question of status of the plaintiffs and the defendant. It was a judgment in a Letters Patent appeal by which a judgment of a Judge of this Court, sitting alone, was set aside and a judgment of a Subordinate Judge was restored. What judgment of the Subordinate Judge was restored it is impossible to say as no copy of it appears on the record.

(3.) The learned vakil for the appellant then contends that the parties went to trial on the footing that the plaintiffs were raiyats and the defendant under-raiyat. As far as can be seen from the plaint this was so. In the plaint the plaintiffs described the defendant as an under- raiyat. It is somewhat difficult to understand, in view of this admission of the plaintiffs that the defendant was an under-raiyat, how the learned Subordinate Judge held that the defendant was estopped from saying that he was an under-raiyat when apparently the plaintiffs from the commencement of the a suit admitted that he was an under-raiyat. It is, however, immaterial for the purpose of the decision of these appeals whether the defendant was a raiyat or an under-raiyat. The plaintiffs admittedly had a raiyat holding at a fixed rent or rate of rent and, therefore, they were persons to whom Section 18, Bengal Tenancy Act, would apply. Section 18 Bengal Tenancy Act, provides that a raiyat holding at a cent, or rate of rent fixed in perpetutity shall be subject to the same provisions with respect to the transfer of, and succession to, his holding as the holder of a permanent tenure.