PRASANNADEB RAIKAT Vs. TABIUR RAHAMAN

JUDGEMENT

(1.) These three appeals arise out of three suits instituted by the landlord for enhancement of rent of three tenancies after serving notice under Section 13 of Act 10 of 1859 and for realization of arrears of rent at the enhanced rate. In Suit No. 43 which has given rise to Second Appeal No. 1094 the tenancy is Jote Mohan Bhog and comprises 7285 acres held at a rental of Rs. 16-4-0 per year. In the notice the landlord claimed at an enhanced rate at Rs. 1979-11-0. The Deputy Collector, before whom the suit was instituted decreed the suit at Rs. 537-12-0. Both parties appealed to the District Judge. The District Judge dismissed the suit, holding that the lands are not agricultural and Act 10 of 1859 does not apply. Against that decision the plaintiff landlord has filed Second Appeal No. 1094 of 1936. In Suit No. 44 which has given rise to Second Appeal No. 1362 the tenancy which is described as Nipur Bigha comprises 417 acres held at a rental of Rs. 22-8.0. In the notice the enhanced rent claimed is Rs. 717R-7-0. The Deputy Collector decreed the suit at Rs. 131-4-7. Both parties appealed. The learned District Judge allowed the appeal of the tenant partially and reduced the enhancement to Rs. 109 6-6. Against that decision the tenant defendants have filed Second Appeal No. 1362 of 1936.

(2.) In Suit No. 45 the tenancy is described as Jote H. G. York or Ba Ranga Das and comprises an area of 22 74 acres held at an annual rental of Rupees 5-10.0. In the notice the enhanced rent claimed is Rs. 84. The Deputy Collector decreed the suit at Rupees 66.6-7. Both parties appealed. The District Judge reduced the enhanced rent to Rs. 55-5-6. Against that decision the tenant defendants filed Second Appeal No. 1363 of 1936. In the tenants appeals S. A. Nos. 1362 and 1363 of 1936 the first contention of the appellants is that the plaintiffs are not entitled to get a decree for rent at an enhanced rate on the ground stated in the judgment of the Court of Appeal below. The suits are under Act 10 of 1859, not under the Bengal Tenancy Act: therefore to justify enhancement one must look to the law as prevalent under the former Act and not to that under subsequent conditions. Now Act 10 recognises that an under-tenure is liable to enhancement of rent, but it does not prescribe any specific grounds for such enhancement, as it does in the case of a raiyat by Section 17. So it has been held that in the case of a middleman, the grounds of enhancement must be those for which he was liable prior to the passing of the Act, and if the enhancement is claimed on the ground of being fair and equitable, that has always been subject to the condition that the rent is not more than what is paid by similar tenures in the pergunnah or neighbourhood : Girish Chandra Ghose v. Ramtunoo Biswas (1869) 12 WR 449. That case derives authority from the Privy Council decision in Dhunput Singh V/s. Gooman Singh (1867) 11 MIA 433. The latter in its turn refers to Dayaram's case 1 SDA Reps 139 and the note of Sir Wm. McNaughten at the foot of it which shows that: Where the suit is against an intermediate tenant the enhancement ought to be made according to the pergunnah rate of rents payable, not by raiyats, but by the holders of similar tenures.

(3.) It seems to me that these decisions are not confined to the specific provision in Section 51 of Regn. 8 of 1793 but are based on broader and more general principles. Regn. 8 is the only statutory provision bearing on the subject prior to Act 10. Section 51 of the Regulation does not expressly mention "pergunnah rate as a condition. In order to prevent undue exaction from zamindare it lays down that rents of dependent taluqdars will not be enhanceable except on four grounds one of which is "the conditions under which the taluqdar holds his tenure." The principle that the taluqdar is not liable to pay more than the pargannah rate for similar tenures comes under this class, which indeed does not lay down a new rule for the first time: Brojo Soondur V/s. Kalee Kishore (1866) 8 WR 496 and Raja Nilmony Singh Bahadoor V/s. Ram Chakerbutty (1874) 21 WR 439. Dr. Basak for the respondent landlord has pointed out that Regn. 8 does not apply to a district like Jalpaiguri or Darjeeling which comes under the Scheduled Districts Act 14 of 1874. But this really makes no difference. If tenure-holders had the privilege of not being liable to pay more than the customary rate, they did not lose that privilege in the scheduled district by the Act of 1874. The principle of justice, equity and good conscience was made a statutory principle by Section 37, Civil Courts Act 12 of 1857 which enacts that the Courts will apply that principle where there is no other law for the time being in force. If it be contended that the principle of "fair and equitable rate" has always existed, no case has been shown to us in which the Court has given a decree on that ground without considering the question of customary rate. In this connexion attention has been drawn to the remarks of Sarada Charan Mitra in his Land Law of Bengal, Edn. 2, pp. 185 and 186. The learned author after referring to Regn. 8 of 1793 and Act 10 of 1859 points out that suits for enhancement of rent of tenures failed for want of evidence as to customary or pergannah rates; and in many oases the Courts simply granted decrees declaring the liability of the tenure to enhancement without being able to grant consequential relief.