BHABESH CHANDRA BANERJEE Vs. SHYAMA SUNDARI DEBI

JUDGEMENT

(1.) THE suits out of which these appeals arise were brought to recover arrears of rent. THE issue which fell for determination was whether the rent payable was at the rate alleged by the tenants or at the rate alleged by the plaintiff. THE difference between the two rates is equivalent to a sum which at some remote period was collected as an abwab. Since 1865 the tenants have paid, and have received rent receipts, upon the footing that the rent payable was at the full rate claimed by the landlord; and there is a finding of fact by the lower appellate Court (having regard to the evidence adduced on the one side and on the other) that there was a valid agreement proved between the landlord and the tenants that they would pay the sum which was made up of rent proper and abwabs as consolidated rent. That us a finding of fact which we are not prepared to disturb in second appeal. THE learned vakil on behalf of the appellant, however, has urged that the rate of rent is concluded in favour of the tenants by reason of the fact that an application was made by the landlord under Section 105, Ben. Ten Act, for an enhancement of rent. Now the record-of-rights sets out the rent as being the rent proper and not what I may call the consolidated rent now claimed by the landlord; and if an application had been male under Section 106, Ben. Ten. Act, to correct that entry, in my opinion, it would not now be open to the parties to that application to reagitate the rate at which the rent was payable in the present suit. But the application under Section 105, was for enhancement of rent, and upon such an application the revenue officer would not have had 2 of 2 jurisdiction to correct the entry in the record-of-rights. It follows, therefore, that, as this is an application to enhance the rent under Section 105, and not an application to correct the entry in the record-of rights under Section 106, it is not within the ambit of Section 105, and the rate of rent is not concluded against the landlord by reason of his having made an application under Section 105. In the circumstances obtaining in this case, therefore, the issue as to the amount of rent payable is one which the parties were entitled to canvass in this suit, and the finding being one of fact and adverse to the appellant, the appeals fail and must be dismissed with costs: one set in each appeal. Duval, J.

(2.) I agree.