GOBINDA KISHORE BAL Vs. JITENDRA CHANDRA MUKHOPADHAYA

JUDGEMENT

(1.) This is an appeal on behalf of the defendant and arises out of a suit commenced by the plaintiffs for recovery of arrears of rent due in respect of a certain holding at the rate of Rs. 70-1-9 a year. The defence is that the rent due in respect of the holding was Rs. 54-6.6 a year and the excess of Rs. 15 odd that is claimed by the landlords is in contravention of Section 29, Ben. Ten. Act and is hence not recoverable. The plaintiff's attempted to get round this bar by saying that after the publication of C. S. records which recorded the rent at Rs. 54-6-6 a year, they were about to commence proceedings for increase of rent under Section 105, Ben. Ten. Act and thereupon the tenant agreed to an increment of Rs. 7-14-9 for additional area and also to an enhancement of Rs. 7-12-6 on account of rise in the price of staple food-crops making an aggregate of Rs. 70-1-9 and this is the rent which the defendant had been paying for a considerable period of time exceeding ten years.

(2.) The trial Judge held that there was an excess in the area by about l 1/2 pakhis but he held at the same time that the landlords enhanced the rate rather unsystematically and the Court would not have allowed enhancement of rent but for the fact that the enhanced rent had been admittedly paid for a period of three years immediately preceding the period for which rent was claimed. In this view of the case, the Munsif decreed the plaintiffs suit and allowed rent at the rate claimed by the plaintiffs. I may point out here that the Munsif was really labouring under a misapprehension of law, for, the proviso (1) to Section 29, Ben. Ten. Act only dispenses with the necessity of a contract being in writing and registered but does not affect Clauses (b) and (c) of the section.

(3.) There was an appeal taken to the lower appellate Court by the defendant against this decision, and the lower appellate Court dismissed the appeal and affirmed the judgment of the trial Court. The lower Appellate Court was of opinion that the plaintiffs had failed to prove that there was a real increase in the area for which rent was being paid, by proper and adequate evidence, but as there was a contract to pay enhanced rent and realisation at that rate for a considerable number of years, there was no reason why "the contract followed by realisation for long time" should not be given effect to. It is against this decision that the present second appeal has been preferred.