DHRUPAD CHANDRA KOLEY Vs. HARINATH SINGHA ROY

JUDGEMENT

(1.) This second appeal arises out of a suit brought under Section 52 of the Bengal Tenancy Act for enhancement of rent, on the ground that the tenants are in possession of land "proved by measurement to be in excess of the area for which rent has been previously paid".

(2.) Gouri Pattra s case (Gouri Pattra v. H.R. Reily) 20 C. 579 : 10 Ind. Dec. (N.S.) 392. is the ruling authority upon the main principles governing such a claim. It is true that Clauses (5) and (6) have since been added to the section, Clause (5) by the Amending Act, 1898, and Clause (6) by the Amending Act of 1907. But Clause (5) merely corrects a misapprehension which had arisen in regard to a particular passage in the judgment in Gouri Pattra s case (3) [Rajkumar v. Ram Lal 5 C.L.J. 538 at p. 540], and Clause (6) only applies when such a practice has been proved by the landlord or tenant as is mentioned in the clause.

(3.) If regard be had to the terms of the section itself the question in every case, the landlord being the claimant, is whether the tenant is in possession of land "in excess of the area for which rent has been previously paid by him" Section 52(1)(a)]. Light is thrown on the meaning of the words by Clause (2). That clause lays down that in determining the area for which rent has been previously paid, the Court shall, if so required by any party to the suit, have regard to" four matters, of which I need only mention three: (a) The origin and conditions of the tenancy, for instance whetherthe rent was a consolidated rent for the entire tenure or holding. (c) the length of time during which the tenancy lasted without dispute as to rent or area", and (d) the length of the measure used or in local use at the time or the origin of the tenancy as compared with that used or in local use at the time of the institution of the suit.