TARINI CHARAN SARDAR Vs. SRISH CHANDRA PAL

JUDGEMENT

(1.) This appeal is by the defendant in a suit for rent in respect of a holding in which the plaintiff claimed rent for a period of four years at the old rate and further claimed enhancement of rent on the ground that in consequence of improvement made at his cost there had been an increase in the productive power of the land. The trial Court held that the value of the land had increased on account of certain improvements made by the plaintiff but that he was not entitled to claim enhanced rent on the ground that the defendant succeeded in raising the presumption in his favour under Section 50(2), Ben. Ten. Act. The plaintiff appealed and the learned Additional District Judge held that in this particular case the tenant was not entitled to the presumption under Section 50(2), Ben. Ten. Act though he had proved payment of rent at a uniform rate for a period of more than 20 years. The reasoning adopted by the learned Judge is this : In 1890 this Jote along with another was sold in execution of a rent decree by the plaintiff and purchased by the defendant; in the sale proclamation the property sold was described as a jote; a jote ordinarily means an occupancy holding; and an occupancy holding is under the law a holding the rent of which is liable to-be enhanced ; the defendant having purchased the property as a jote must accept that position and cannot now turrj round and say that he is a raiyat at fixed rate. In other words the learned Judge, though he has not used that expression is of opinion that from the description of the property in the proclamation of sale under which he has purchased it, he is estopped from pleading, that the right he purchased was anything different from the right of an occupancy holding. This view, in my opinion, is clearly erroneous. It has been conceded before us by the learned vakil for the respondent, and in my opinion rightly that no question of estoppel arises in this case. The holding was described as a jote in the sale proclamation by the plaintiff and the defendant has purchased the interest of the defaulting tenants whatever that was. The decree-holder may in a proper case be bound by the description given by him in the sale proclamation but to my knowledge no case has gone to the extent of holding that because the purchaser purchased the property described in a particular way in the sale proclamation, he cannot claim a higher or different right which the judgment-dabtor actually had and which the purchaser had really purchased.

(2.) Now, with regard to the assumption made by the learned Judge that the term "jote," ordinarily means occupancy holding, there is high authority to hold that it is not so. In Midnapore Zemindary Co. V/s. Naresh Narayan Singh A.I.R. 1922 P.C. 241 the Judicial Committee observed: Jote is a general term and it is not necessarily equivalent to a "raiyati jote.

(3.) The same view was taken in this Court in Rajani Kanta V/s. Yusuf Ali [1917] 21 C.W.N. 188 and Nawab Ali V/s. Hemanta Kumari [1904] 8 C.W.N. 117. These oases have been attempted to be distinguished on the ground that the holdings seferred to in them consisted of more than one hundred bighas and therefore, the presumption under the law was that they were tenures. The interpretation of the term "jote" in those eases does not seem to have been affected by the fact that the holdings under consideration were more than 100 bighas. After holding that the term "jote" did not necessarily mean a raiyati holding the Courts proceeded to determine the nature of the tenancy in those cases and having found that the area was over 100 bighas they allowed the presumption of law to be raised in favour of their being tenures.