KAILASH SUNDARI DASI Vs. MIDNAPUR ZEMINDARY CO LTD

JUDGEMENT

(1.) These appeals on behalf of the tenants arise out of proceedings under Section 105, Ben. Ten. Act, for settlement of fair and equitable rents under Section 30, Ben. Ten. Act, on the ground of rise in the price of staple food crops. The defence of the defendants was based upon many grounds with which we are not now concerned. The main ground on which these appeals have been pressed is with reference to the rate of rent on which enhancement has been allowed by the Court below under Section 30, Ben. Ten. Act. The plaintiffs case is that the real rent payable by the tenants of the mouzah was at the rate of Re. 1 per bigha; but in consideration of the defendants cultivating indigo it was reduced to 10 annaper bigha. They accordingly claimed enhancement of rent under Section 30 on Re. 1 per bigha. The tenants said that they were liable to pay rent only at the rate of 10 annas per bigha and the enhancement, if any, should be allowed on that rent. The Assistant Settlement Officer was of opinion that the rent on which enhancement should be allowed ought to be the rent entered in the settlement records and paid by the tenants at the time when that record was prepared, namely, 10 annas per bigha. The learned Special Judge on appeal by the plaintiffs has held that the actual rent for which the tenants are liable is at the rate of Re. 1 a bigha and he has allowed enhancement upon that rent.

(2.) It appears that this mouzah at one time belonged to one Mr. Sills. The rate of rent at that time was 5 annas odd per bigha. Mr. Hills attempted to enhance the rent of the tenants and for that purpose brought suits against some of the leading tenants. Those suits were in the nature of test suits. They were carried up to the High Court and Mr. Hills got a decree in this Court at Re. 1 per bigha. Since then there have been several jamabandis, one in 1293 B.S., and another in 1309 -- which were accepted by the tenants and they show that the rent was Re. 1 a bigha but that remission or allowance was made of 7 annas in the rupee and latterly 6 annas in the rupee in view of the willingness of the tenants to cultivate indigo for the landlords. This remission is described in the landlords papers as mahakup or temporary remission of rent. The tenants ceased to cultivate indigo from 1305 and hence the plaintiffs claimed that they were entitled to realize the full rent from the defendants and enhancement should be calculated upon that rate. The lower appellate Court has accepted the plaintiffs contention and held that the tenants are liable to pay rent at the rate of Re. 1 per bigha and allowed enhancement at the rate of 2 annas 6 pies in the rupee on that rate. The tenants have appealed and the ground pressed on their behalf will appear from the discussion of the points raised in the cases.

(3.) On behalf of the respondents a preliminary objection is taken that no appeals lie in these cases under Section 109-A, Ben. Ten. Act. Section 109-A makes all decisions of the Special Judge subject to appeal to this Court except those settling a rent." Now the question to be considered is whether the decision in these cases is one which can be called settling a rent. What the Special Judge has done is to find out what the original rent payable by the tenant was and then he has proceeded to settle fair and equitable rent under Section 105 read with Section 30, Ben. Ten. Act. In may opinion the decision of the Special Judge in these cases is not what may be said to be a decision settling a rent pure and I simple. He has done something more than that; that is, he has found what the I real rent payable by the tenants is "Settling arent" has been given, as will appear from an examination of the several sections of the Act, a technical meaning. Ordinarily "settle" would mean decide something which was previously unsettled. Where there was no rent fixed in the Record-of-Rights or where the rent mentioned in the Record-of-Rights is accepted as correct and increase or abatement is demanded thereupon on one of the grounds mentioned in the Act, the decision of the Settlement Officer in such and similar cases would be a decision settling a rent. In the present cases the Special Judge has found what the actual rent payable by the tenants is. That is not exactly settling a rent. That cannot be settling a rent in the sense in which the words are used in Section 105, Ben. Ten. Act. "Settling a rent" must be distinguished from settling a dispute relating to rent. In Ramani Pershad Naraini Singh V/s. Adaiya Gossain [1904] 31 Cal. 380, the learned. Judges were called upon to assign a meaning to the expression "a decision settling a rent" and they observed: The words a decision settling a rent do not in our opinion mean and include . any decision upon the question what is or what ought to be the rent. They mean only a decision settling, a rent in the sense of settling a fair and equitable rent in place of the existing rent and the words do not include a decision determining, what the existing rent is.