NAFAR CHANDRA PAL CHOWDHURY Vs. JATINDRA NATH DAS

JUDGEMENT

(1.) This is an appeal by the plaintiffs landlords and arises out of a suit for arrears of rent on utbandi basis. The defence of the tenants in substance was that some of the lands were patit or khicha or asha lands during the period in suit, that no rent was payable for patit lands and that the rate of rent for khieha lands was 8 annas and for asha lands 6 pies per bigha. The Court of first instance held that the plaintiffs had failed to establish that defendants were liable to pay rent for lands kept patit. The lower appellate Court agreed with the Munsiff.

(2.) A second appeal has been taken to this Court by the plaintiffs landlords and the main contention before me has been that even if it were held that some lands remained patit or khicha or asha during the years under claim the plaintiffs are yet entitled to full rate in respect of those lands inasmuch as the tenants have acquired a right of occupancy therein. It is to be noticed that this grounds on which the plaintiffs sought to recover full rates of rent does not find place in the plaint. It is true that the question was raised in the course of argument in the Court of first instance.

(3.) A preliminary objection has been taken by the learned advocate for the respondents to the hearing of this appeal and it is contended that as the tenancy is an utbandi tenancy the provisions of Section 153, Ben Ten. Act did not apply to such a case and that an appeal is not allowed by the proviso to Section 153 as it cannot be said that there is any decision on any question of amount of rent annually payable. It is not disputed that the word "rent" under the Bengal Tenancy Act includes money as well as paddy rapt and although the rent may vary still the Court has determined what is the rate of rent which is payable or as to whether the rent is payable in respect of certain classes of land or not. I do not think there is any substance in the preliminary objection.