JAGDEO NARAIN SINGH Vs. TULA SINGH

JUDGEMENT

(1.) These are appeals under Clause 10 of the Letters Patent from the decision of a Judge of this Court sitting singly dismissing a batch of second appeals from decree in suits for enhancement of rent.-The plaintiff claimed enhancement under Sub- sections (a) and (b) of Section 30; Bengal Tenancy Act. The Courts below found that it had not been demonstrated that any prevailing rate existed in the village and, therefore, dismissed the plaintiff's claim under Section 30-A. Under Section 30-B, the enhancement admissible on a strict application of the provisions of Section 32 of the Act would have been at 0-3-9 in the rupee, but applying the provisions of Section 35 the Courts below found that enhancement at a higher rate than that of one anna in the rupee would not be fair and equitable. The learned Judge of this Court has accepted the finding that there is no prevailing rate in the village, and he has also accepted the finding that enhancement at the higher rate than one anna would not be fair and equitable but permission has been given to appeal under Clause 10 of the Letters Patent because the learned Judge considered that the Courts below were mistaken in supposing that the decision in Brij Behari Singh V/s. Sheo Sankar Jha 2 PLJ 124 : 39 Ind. Cas. 85 : AIR 1916 Pat. 120 : 1 PLW 434 : (1917) Pat. 108, had been overruled by subsequent decisions of this Court. Mr. Sivanandan Ray on behalf of the plaintiff-appellant suggests that on the application of the decision in Brij Behari Singh V/s. Sheo Sankar Jha (1), the prevailing rate should be determined in accordance with the principles laid down in Section 31-A, Bengal Tenancy Act. So far as the Courts below have agreed in finding that no prevailing rate existed in the village, they have proceeded exactly in accordance with the instructions which were given in Brij Behari Singh's case 2 PLJ 124 : 39 Ind. Cas. 85 : AIR 1916 Pat. 120 : 1 PLW 434 : (1917) Pat. 108, wherein by reference to the decision of Mitter, J. in Shadoo V/s. Ramanoograha 8 WR 83, the late Sir B.K. Muliick made it clear that the prevailing rate must be understood to mean not the average rate, nor the rate at which more than half of the land of the village was held, but the actual prevailing rate of rent at which all the villagers or the great majority of them held their land. In the case to which Sir B.K. Mullick referred, the learned Judge cited as an example a village in which over ninety percent, of the raiyats might hold at a certain determined rate and pointed out that if so large a proportion of the land of the village were held at a certain rate it might be reasonably assumed to be the prevailing rate of the village.

(2.) It need not be doubted that if in the present case ninety per cent, of the raiyats had held their land at a certain definite rate, that would have been properly regarded as the prevailing rate, unless there were some special circumstance such as recent commutation of rent on a large scale to make it possible thus to treat the rate. Mr. Sivanandan Ray has drawn our attention to the report of the Commissioner from which it is obvious that nothing of the kind is to be found in this village as the learned Judge of this Court has remarked, and the finding that there is no prevailing rate must be affirmed But if the principles laid down in Brij Behari Singh's case 2 PLJ 124 : 39 Ind. Cas. 85 : AIR 1916 Pat. 120 : 1 PLW 434 : (1917) Pat. 108, are to be applied, and there is no prevailing rate in the village then the holdings in suit would have to be assessed at the lowest rate paid for land of similar description with similar advantages in the village. This fact has frequently escaped notice when the decision of Mullick, J. has come under consideration, although attention was drawn to it by Wort, J. in Kameshwar Singh V/s. Soney Misser 14 PLT 645 : 148 Ind. Cas. 1199 : AIR 1933 Pat. 529 : 6 RP 558. On the strict application of the rule in Brij Behari Singh's case 2 PLJ 124 : 39 Ind. Cas. 85 : AIR 1916 Pat. 120 : 1 PLW 434 : (1917) Pat. 108, the plaintiff's claim under Section 30-A would thus necessrily fail since all the defendants are already paying at rates higher than the lowest rate paid for lands of similar description in the village. In later decisions wherein the decision in Brij Behari Singh's case 2 PLJ 124 : 39 Ind. Cas. 85 : AIR 1916 Pat. 120 : 1 PLW 434 : (1917) Pat. 108, has been discussed, it has been held that if no prevailing rate is to be found in the village, the claim under Section 30-A., Bengal Tenancy Act must fail. This, in our judgment, is the more correct view. The same result would ordinarily ensue from the application of the rule in Brij Behari Singh's case 2 PLJ 124 : 39 Ind. Cas. 85 : AIR 1916 Pat. 120 : 1 PLW 434 : (1917) Pat. 108, but it is difficult to understand how, if no prevailing rate is found in the village the provisions of Section 31-A can be applied to assess the land at the lowest rate paid for lands of similar description in the village. It is manifest that the provisions of Section 31-A must not be applied except in that small area in the Monghyr district to which the provisions of that Section have been extended. It. is difficult to conceive in what circumstance the decision in Brij Behari Singh's case 2 PLJ 124 : 39 Ind. Cas. 85 : AIR 1916 Pat. 120 : 1 PLW 434 : (1917) Pat. 108, could be held to justify the application of the principles laid down in Section 31-A, because these are not to be applied if the lowest rates paid for land of similar description can be ascertained and it is clear that if the lowest rate cannot be ascertained the procedure prescribed by Section 31-A cannot be adopted. The decision has been misunderstood as implying that the provisions of Section 31-A are to be followed in a suit for enhancement when the prevailing rate cannot be ascertained but on a proper reading of the judgment this conclusion certainly cannot be drawn from it. It, therefore, appears to matter little for practical purposes whether the Court below were right or wrong in assuming that the decision in Brij Behari Singh's case 2 PLJ 124 : 39 Ind. Cas. 85 : AIR 1916 Pat. 120 : 1 PLW 434 : (1917) Pat. 108, so far as it referred0 to Section 31-A, Bengal Tenancy Act had been overruled since on a proper reading of the judgment that direction could never come into practical application at all. Mr. Sivanandan Kay further argues that since the rents paid by the defendants in these cases are low, the full enhancement on a strict reading of Section 32, Bengal Tenancy Act ought to have been allowed. Mr. Hay pointed out that in Nathuni Thakwrv. Ramsaran Singh 11 Pat. 654 : AIR 1932 Pat. 225 : 139 Ind. Cas. 191 : 13 PLT 377 : Ind. Rul. (1932) Pat. 219 (SB), a Special Bench of this Court did actually allow enhancement on the ground that the rent which has been paid by the defendants in that case was exceptionally low. The general effect of that decision has apparently been properly appreciated by the learned Munsif which was this: that the provisions of Section 35, Bengal Tenancy Act should be read as saving an officer who is applying the provisions of Section 32 from the anomalous position in which he might otherwise find himself, of being obliged to take as a basis for future payments comparatively recent conditions which he may know have already ceased to exist. In the present case the learned Munsif pointed out from the evidence which he had before him under Section 39, Bengal Tenancy Act, that if the later decennial period had been extended by one year, the rate of enhancement admissible would fall by more than half while if it were extended by two years up to 1932, the rate admissible would fall to one anna. In the circumstances he came to the conclusion that it would not be fair and equitable to allow enhancement at the rate of more than one anna in the rupee; and it cannot be said that the discretion which he is required by law to exercise in this matter has been unfairly exercised. This finding that enhancement at one anna in the rupee would be fair and equitable was also accepted by the learned Judge of this Court and we do net find any ground for interference with his decision. I would dismiss these appeals with costs. There will be one consolidated hearing fee of Rs. 64 which wilt be equally divided among-the eight sets of respondents. Courtney-Terrell, C.J.

(3.) I agree.