GOPAL PRAMANIK KAPALI, AND ON HIS DEATH HIS HEIRS AND LEGALREPRESENTATIVES JANKI (NATH) PRAMANIK KAPALI Vs. KALI KANTA GHOSE, AND ON HIS DEATH HIS HEIRESS AND LEGAL REPRESENTATIVE SURNAMOYI DASSI

JUDGEMENT

(1.) THIS is an appeal preferred: by the defendants against the decision of the learned Subordinate Judge of Jessore, dated, the 27th January 1917, affirming the decision of the Munsif of Narail. The suit was brought under the provisions of the Bengal Tenancy Act for enhancement of the rent payable by the defendants. The land which, it is common ground, is held by the defendants as tenants of the plaintiff measures about 148 bighas and the rent formerly paid was a sum of Rs. 48-12-0 per annum. Both the lower Courts in agreement have enhanced the rent to a sum of Rs. 126 odd a year and the defendants have appealed against that decision to this Court. The first point for the decision of the case is, "what is the status of the defendants?" In the lower Courts, the case of the defendants was that they were tenure- holders and not raiyats. The kabuliyat in the present case shows that it was granted for the purpose of cultivation to a lessee who had the occupation of an agriculturist. It seems to be quite dear that there was evidence before the Court which justified the learned Judge to come to the conclusion that the Status of the defendants was that of a raiyat and not a tenure- holder. If they were raiyats, there was evidence before the Court which entitled it to come to the conclusion that they were raiyats with rights of occupancy. If that is so, then the question is whether the rent is liable to be enhanced and whether under the terms of this document the rent has been fixed in perpetuity. There are no express provisions in the document precluding the landlord from applying to have the rent enhanced under the provisions of Section 30 of the Bengal Tenancy Act But it is said that the document, as it provides only for the rent being enhanced in the case of a survey being made, must be taken to have excluded the other cases of enhancement. That I do not think is right, because the defendants agreed that so long as no survey should take place they would pay without objection the rent of Rs. 48-12-0 per annum. That does not preclude the landlord from applying to have the rent enhanced in the cases provided for by Section 30 of the Bengal Tenancy Act, if and when a proper case for enhancement is made out. I see no reason in this case to disturb the judgment of the lower Appellate Court. The present appeal, therefore, fails and must be dismissed with costs.