SOUDAMINI DASSYA CHOUDHURANI Vs. SHEIKH BASIR MAMUD

JUDGEMENT

(1.) There is no substance in Section A. Nos. 968, 970, 979 and 980 of 1926 and they must be dismissed with costs.

(2.) As regards the other appeals, it is argued on behalf of the appellant that the procedure adopted by the lower appellate Court is not in conformity with the direction given in Sections 30 and 32 Ben. Ten, Act. The suits are for enhancement of rent on the ground of additional area under Section 52 and of rise in the price of food-crops under Section 30(b), Ben. Ten. Act. In 1916 after the publication of the record-of-rights applications were made by the plaintiff under Section 105, Ben. Ten. Act, for enhancement of rent under Section 52 and also under Section 30(b). Those applications were withdrawn so that on the authority of the Full Bench decision, Puma Chandra V/s. Narendra Nath , the same matter cannot form the subject of subsequent suite. The trial Court in view of the Pall Bench decision held that the plaintiff's claim for enhancement under Section 52 must be disallowed in view of Section 109, Ben. Ten. Act. But with regard to her claim under Section 30, it was of opinion that is was not affected by Section 109, Ben. Ten. Act. After a consideration of the evidence in the cases it came to the conclusion that the plaintiff was entitled to enhancement at 3 annas per rupee under Section 30(b). Both parties appealed. The plaintiff's appeals were dismissed by the lower appellate Court, but the defendant's appeals were allowed as the learned Subordinate Judge was of opinion that in the circumstances of the cases no enhancement should be granted under Section 30. The learned Subordinate Judge says that under Section 32, Ben. Ten. Act, the Court is required to compare the average prices during the 10 years immediately preceding the institution of the suit with the average prices during any other convenient ten years. But as he thinks that the ten years immediately preceding the institution of the suit which was in 1923, included the period of the Great War during which the prices were abnormally high, he holds that Section 32, cannot be properly applied to the case. The Munsif compared the prices during the periods from 1903 to 1912 and 1913 to 1922 and came to the conclusion which he embodied in his decree. We are not quite sure that the learned Subordinate Judge is not right in saying that the comparison between the two periods mentioned by the Munsif was not the proper method of arriving at a finding as to what should be the just increment of rent to be paid by the tenants. But the learned Judge seems to be under the impression that the periods which the law requires him to compare must be consecutive periods; that is ten years immediately before the institution of the suit and ten years immediately before that period. But the Jaw does not say so.

(3.) Under Section 32(a), the Court shall compare the average prices during the decennial period immediately preceding the institution of the suit with the average prices, during such other decennial period as to it may appear equitable and practicable. The learned Subordinate Judge has found that the decennial period before the institution of the suit should not be adopted due to the abnormal state of things during a portion of that period. He therefore compares the prices prevalent in the period from 1918 to 1922 with those prevalent during the preceding period from19L3to 1917 and finds that the increase would be like four to six pies a rupee - an increase which in his opinion is very small. We quite see the reason of the view of the learned Subordinate Judge that the decennial period immediately preceding the institution of the suit should not form the basis of calculation. But Section 32(e) gives the option to the Court to take any shorter periods if in its opinion it is not practicable to take the decennial periods prescribed in Clause (a). The learned Subordinate Judge has acted undoubtedly under Section 32(c); but the error which he is said to have committed is that he has compared the period of five years immediately before the institution of the suit with the period immediately before those five years but has not compared the period immediately before the institution of the suit with any other period during the currency of the tenancy in which the normal state of things prevailed. Then the Subordinate Judge has referred to certain evidence in the case and observed, that according to the plaintiff's own witnesses the rents paid by the defendants are the highest in the locality. After making this observation he records his finding in these words: So taking into consideration the fact that the increase will be very small, if granted, and the other circumstances noted above, I think that no enhancement should be granted, even under Section 32(c).