NANDA KISHORE LALA Vs. KHETABUDDIN AHMED

JUDGEMENT

(1.) These two appeals arise out of two applications by the landlord for settlement of fair and equitable rent under Section 105, Bengal Tenancy Act. The landlord asked for enhancement of rent under Section 30(b) on the ground of rise in the prices of staple food-crops, and also for additional rent for additional area under Section 52. The first prayer was allowed by the Assistant Settlement Officer, and there was no appeal by the tenants. The second prayer however was rejected by both the Courts below, and hence the present appeals by the landlord. The defendants-respondents acquired the holdings by purchase, andupon recognition of their purchase, executed kabuliyats in favour of the landlord, agreeing to an enhancement of the jama by nine pies in the rupee. In the kabuliyats, which were expressed in more or less similar terms in both cases, the original holdings were described with reference to area as well as to jama and it was further provided that if on measurement any excess area was found, the landlord would be at liberty to make a fresh settlement in respect thereof. The landlord's case was that as the last Record of Rights which was finally published on 16 May 1934 showed the area of the holding in each case to be greater than the area stated in the kabuliyat, he was entitled to additional rent. He rested his claim expressly on the terms of Section 52, Bengal Tenancy Act.

(2.) Section 52 provides that every tenant shall be liable to pay additional rent for all land proved by measurement to be in excess of the area for which rent has been previously paid by him, unless it is proved that the excess is due to the addition to the tenure or holding of land, which having previously belonged to the tenure or holding was lost by diluvion or otherwise without any reduction of the rent being made. Admittedly there is no question here of any land having been so lost and subsequently added to the holding, so as to bring the case within the exception. The sole question, therefore, is whether the landlord has been able to prove by measurement the existence of any land "in excess of the area for which rent has been previously paid" by the tenant within the meaning of the section. It is not disputed that the area as recorded in the last settlement proceeding was arrived at by measurement, and it is also not seriously questioned that such area was greater than the area mentioned in the kabuliyat, though not expressed in terms of the same unit of measurement. This being so, the landlord maintains that his case comes easily within the terms of Section 52, and his claim to additional rent follows as a matter of course. Both before the Assistant Settlement Officer and the Special Judge his case was that the area shown in the record of rights represented a real increase over the previous area, in other words that there was an actual addition of land to the original holding, the area mentioned in the kabuliyat being stated to be the actual area of the holding at the time. In second appeal however he is met by the finding, which is a concurrent finding of both Courts and therefore conclusive, that the defendants are not shown to be in possession of any lands outside the original boundaries. The learned advocate for the appellant has had consequently to shift his ground in this Court, and contend that Section 52 would equally apply without proof of any real increase of area. According to this argument, the area mentioned in the kabuliyat, if not the actual area, is still the area for which rent has been previously paid by the tenant, and as the area found at the subsequent measurement in the settlement proceeding is larger, there is an "excess" within the meaning of the section for which additional rent would be due.

(3.) In answer, the respondent maintains in the first place that the appellant ought not to be permitted to take up a new position in second appeal. Secondly, on the main question under Section 52, his answer is that the landlord can succeed only if he can make out a real increase of area, and that this he can do by proving first the actual area of the holding at the inception of the tenancy, or, as was held in Gocool Chunder V/s. Jamal <JGN>Biswas</JGN> , at any subsequent time when the rent was assessed or adjusted, and then by showing that subsequent measurement has disclosed a larger area in the possession of the tenant. This, it is said, the appellant has failed to establish in this case, and his claim must therefore fail.