KHAGENDRA PRASANNA SEN Vs. SASI MOHAN TARKASASTRI

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of arrears of rent. The defence inter alia was that the defendant was entitled to a reduction of the jama as admittedly a portion of the holding had been acquired by Government and that the cess which the plaintiff had claimed was excessive the plaintiffs having claimed cess at the rate of 21/2 annas in the rupee whereas according to the defence it should have been only six pies in the rupee. This defence found favour with the first Court and the trial Judge gave a part-decree to the plaintiffs in accordance with the case for the defence. In appeal, the lower appellate Court set aside the judgment and decree of the Court of first instance and gave a full decree to the plaintiffs. The defendant has come up to this Court in second appeal.

(2.) The first point that arises for consideration is whether the defendant was entitled to a proportionate reduction of the jama. The learned Subordinate Judge could not allow any reduction of the jama principally on two grounds. One of these grounds was that there had been nothing in the patta under which the land was held to show that the defendant would be entitled to a reduction of the jama in case there would be a reduction in the area of the holding. I do not see how that ground can be sustained. Section 52, Ben. Ten. Act, gave a statutory right to the defendant to have his jama reduced when there was a reduction in the area of the holding. Then as regards the absence of any stipulation in the patta on the question of reduction of rent it is true that in creating a permanent tenure (as the tenure in the present case is) an agreement with a tenant to deprive him of the provisions of Section 52 is valid; but that agreement must be stated in clearness Umesh Chandra V/s. Mati Lal . In the present case, as I have stated before there was no stipulation in the patta that the defendant would not be entitled to any reduction of rent even if there would be a reduction in the area of the holding.

(3.) The second ground on which the learned Subordinate Judge refused to allow a proportionate reduction of rent to the defendant was that as the land had originally been let out on two pattas in which there were two different rates of rent given no reduction of rent was possible under the ordinary rule of three. But it appears that the defendant in an additional written statement gave full details of the two holdings as created by the two pattas and also of the subsequent amalgamation of them with an average rate of Rs. 3-1-6 per kani. The plaintiffs in no part of their case challenged these allegations as they are to be found in the schedule attached to this additional written statement. In these circumstances and remembering also that the point of the present average rate was never raised in the Court of first instance I am of opinion that the learned Subordinate Judge was not justified in raising that point and in making it one of his grounds for refusing the defendant a proportionate reduction. The two grounds on which the lower appellate Court refused to allow any proportionate reduction in the rent are both, in my opinion, unsustainable and I am of opinion that the defendant was in the circumstances of the case entitled to a reduction of the jama as claimed by him.