NARAYAN SARKAR Vs. MAHARAJA SRISH CHANDRA NANDI

JUDGEMENT

(1.) This appeal is on behalf of the defendants and it arises out of a proceeding under Section 105, Bengal Tenancy Act, started by the landlord plaintiff. The subject-matter of the suit is a tenure. It has been recorded in the family published Record of Rights as a permanent tenure with the incident of enhancebility of rent. Relying upon the entry in the Record of Rights the landlord instituted the proceedings under Section 105, Bengal Tenancy Act, for enhancement of rent under the provisions of Section 7 of the Act, his case being that it is a tenure which was created after the time of the permanent settlement. The defendants raised a defence which comes under the provisions of Section 105-A, Bengal Tenancy Act, namely that their tenure was a permanent tenure existing from the time of the permanent settlement and therefore there could be no enhancement of rent. After the defendants had pleaded in that manner the plaintiff took up the position that even if the tenure be proved to have been in existence at the time of the permanent settlement he is entitled to get enhancement under Clause (a) of Section 6, Bengal Tenancy Act, on the ground that he would be liable to prove from the terms and conditions of the grant that the rent of the tenure was liable to enhancement. For the purpose of proving the terms and conditions of the :grant, if the grant be proved to be at or before the time of permanent settlement, he, the plaintiff, proved a kabuliyat executed by the predecessors-in-interest of the defendants in favour of the predecessors-in-interest of the plaintiff on 20 May 1861. That kabuliyat has been marked Ex. 1. I will have to consider the terms and conditions of this kabuliyat both in relation to the contention raised about the applicability of Section 6, Clause (a), Bengal Tenancy Act, and in also considering the contention raised before me by Mr. Gupta appearing for the defendants- appellants that his clients are entitled to get the benefit of presumption as to the fixity of rent as provided for in Section 50, Bengal Tenancy Act.

(2.) For the purpose of proving that the tenure was in existence at the time of the permanent settlement the defendants produced a document Ex. D-1 and a decree (Ex. D) of the year 1854. The document Ex. D-1 shows that the tenure was in existence from the year 1836 at least. From these two documents the learned Assistant Settlement Officer came to the conclusion by drawing a presumption that the tenure was in existence at the time of the permanent settlement. He accordingly held that the plaintiff was entitled to enhancement only if he could bring his case under Clause (a) of Section 6, Bengal Tenancy Act. There was no occasion for the application of Clause (b) of that Section, because it was not the plaintiff's case that the defendants or their predecessors-in-interest had at any time received reductions of rent otherwise than on account of diminution in area. The learned Assistant Settlement Officer therefore proceeded to consider as to whether the case came within Clause (a) of Section 6. He held that there was no proof of any local custom by which the landlord is entitled to enhancement of rent. He accordingly proceeded to consider Ex. 1, the kabuliyat of the year 1861. That kabuliyat recites that there was a tenancy in the name of the predecessor of the executant of the kabuliyat and thereafter in their names in the sherista of the landlord bearing a rental of Rs. 74-9-0. This rental is mentioned in Ex. D-1 and also in the decree of the year 1851. Then it recites that there was a proposal by the landlord for re-measurement of the lands and for jamabandi. The kabuliyat then says that pending the measurement and re- adjustment of rent the executant of the kabuliyat agreed to pay for five years the sum of Rs. 79 odd, that is to say to pay an enhancement of about Rs. 5 per year. It further goes on to say that after the re-measurement of the land the tenant would attend the jamabandi and if he attends the jamabandi he will be bound to pay on the area found out on. measurement a rate of rent according to the rate of rent prevailing in the villages appertaining to the pargana. But, if he fails to attend at the jamabandi, any rent settled by the landlord in his absence would be binding on him. There is a further clause that after the expiration of the period of five years during which the rent of Rs. 79 odd was to remain current, the landlord would be entitled to resume in his khas possession such lands of the tenure as would be necessary for the construction of his kutcheribari or for the establishment of any hat or bandar. But in that case the tenant would be bound to pay the rent of the remaining lands at the aforesaid nirik, that is to say at the nirik or rate of rent prevailing in the villages appertaining to the pargana. This may be conveniently put as the pargana rate. The last clause in the lease is that after the five years the tenant would be bound to take a new settlement.

(3.) This last clause in my opinion means that the tenant would be bound to agree to a resettlement and readjustment of rent after the measurement which was then in contemplation had been completed, and that resettlement and readjustment of rent would be at, as I may call, the pargana rate. The learned Assistant Settlement Officer on construing this kabuliyat, Ex. 1, came to the conclusion that it proved one of the conditions under which the tenure was held, that condition being that the tenant would be bound to pay enhancement of rent. He accordingly held that although the tenure was in existence from the time of the permanent settlement by the condition of the grant the landlord was entitled to get enhancement. Then he proceeded to determine the amount of enhancement and in fixing the said amount he proceeded upon Sub-section 2 and 3 of Section 7, Ben. Ten. Act. I may mention here that the question about the genuineness of Ex. 1 was raised by the defendants before the Settlement Officer but he found the said document to be a genuine one. The defendants preferred an appeal to the Special Judge; and in the grounds of appeal they limited their objections to two matters. First of all they said that Ex. 1 was not a genuine document and secondly, if it was a genuine document it did not prove that enhancibility was one of the incidents of the tenancy. They did not take any ground in the grounds of appeal before the lower Appellate Court that if the grant of the tenure had been in existence from the time of the permanent settlement, the principle on which the rent had been assessed by the Assistant Settlement Officer was wrong, nor did they challenge the amount of assessment fixed by the Assistant Settlement Officer. The learned Special Judge however reversed the finding of the Assistant Settlement Officer as to the time of the creation of the tenure and came to the conclusion that the tenure came into existence in the year 1861 as a result of the kabuliyat Ex. 1. He concurred with the finding of the learned Assistant Settlement Officer in holding that the said document was genuine. Having recorded that finding he affirmed the decree made by the Assistant Settlement Officer.