SARADA PROSAD GHOSE Vs. PRAFULLA CHANDRA GHOSH

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for rent, the question raised being as to the amount of rent payable. Plaintiffs are owners of a temporarily settled estate T. 919 of the Khulna Collectorate which comprises 4 mouzas, the defendants tenure being with-in one of them. The original revenue from the entire estate was Rs. 2250 upon a settlement of 99 years. In 1932 there was a re-settlement for 30 years and the revenue fixed was Rs. 11,205. The defendants tenure was created on 31 March 1877 and the annual rental then payable was Rs. 687-4.0 for an area of 800 bighas. In 1930 there was assessment of additional rent for additional area and the entire annual rent then fixed was Rs. 728-2as-14g. In 1932 when there was the re-settlement, the annual rent was increased to Rs. 2822 under Ch. 10, Part 2, Ben. Ten. Act, this rent being recorded as payable from 1 April 1932. Plaintiffs have sued on the basis of the Record of Rights at the above rate for the period subsequent to 1 April 1932. The main defence is that Section 104. J, Ben. Ten. Act, is not applicable to this jama and that the plaintiffs are not entitled to get more than the rate of Rs. 728.2as-1.4g. yearly. The Subordinate Judge has held against this defence and decreed the suit. Hence this appeal.

(2.) The question is whether in this suit plaintiff is entitled to the rent as recorded under Part 2, Ch. 10, Ben. Ten. Act, and claimed by him, or whether he is only entitled to the rent as contracted for in the kabuliyat Ex. A and the potta Ex. B. The lease came into existence before the Bengal Tenancy Act The recitals show that the land was let out for reclamation and the terms provide for a progressive increase of rent until the full rate of 8 annas per bigha is reached. Thereafter the rent is taken to be fixed, subject to the condition that if the rate of revenue be ever increased by Government the tenant would pay increased rent proportionately. The relevant clause in Ex. A runs thus: Besides the Dak cess and the Road cess no other imposition will ever be made besides the rate of rent fixed, but whatever order will be made by Government at the time of settlement in future towards increment in respect of these lands will also be added to the jama to be paid by us.

(3.) Therefore subject to this contingency as to increase of revenue by Government the rate of rent is fixed. That this is the character of the tenancy is supported by the decisions in similar cases, e.g. Huro Prasad Roy Chowdhry V/s. Chundee Churn Boyragee (1883) 9 Cal 505, Port Canning Band Improvement Co. Ltd. V/s. Katyani Debi (1919) 6 AIR PC 42 and Satya Charan v. Mohan Sil Das . This is also not disputed by the learned advocate for the plaintiff-respondent in this Court. But he has contended that in spite of the provisions as to rent in the lease, when once the rent has been settled under Section 104, Ben. Ten. Act, the tenant is bound to pay that rent. This is the view taken by the learned Subordinate Judge who pointed out that it was open to the tenant to move the Revenue Officer under Section 104.E or 104.G or the Civil Court under Section 104-H, that he failed to do so, and that the entry of rent is conclusive under Section 104-J. Dr. Pal for the defendant-appellant does not dispute this, but his contention is that the provision in the lease is a special condition or incident of the tenancy, that the record, or the omission to record, as to this has no more finality than that under Section 103. B, Clause (5), that is to say that it is open to defendant to show by evidence, in other words by producing the documents of lease, that so far as the plain, tiff is concerned he is not entitled to more than is stipulated for in the documents of lease. When there is a Record of Bights prepared, the particulars to be recorded are those as laid down in Section 102 and they include the rent payable at the time the Record of Rights is being prepared, the special conditions and incidents if any of the tenancy and so on. This record when finally published is presumed to be correct until it is proved by evidence to be incorrect : Section 103-B (5). Where a settlement of land revenue is not being made, fair and equitable rent may be settled under Section 105 on the application of the parties and the decision becomes final under Section 107. But where a settlement of land revenue is being made, Government has to fix the basis of such settlement by finding the assets of the estate and so we have it that in every case in which a settlement of land revenue is being made, the Revenue Officer shall proceed under Section 104 to settle fair and equitable rent. In doing so, the Revenue Officer may settle the existing rentals recorded in the Record of Rights as published under Section 103-A or he may enhance or reduce such rentals under Section 104.A (1) (d).