RAKHAL CHANDRA CHATTERJEE Vs. BHABADEB CHATTERJEE

JUDGEMENT

(1.) These 13 appeals arise out of the same number of applications for enhancement of rent before the Sattlement Officer and subsequent appeals to the District Judge of Burdwan. The applications were made under Section 105 of the Bengal Tenancy Act, and the Settlement Officer granted increase of rent at 6 annas in the rupee on the ground of the genaral rise in price of local fool stuffs.

(2.) The defendants-appellants main contention was that they were not liable to pay enhanced rent, as they had leases which gave them the right to hold the land at the same rent in perpetuity. There appears to have been some delay in producing them and pleading on the basis of these leases. Bat they were produced before the parties went to trial and an issue was framed: "Are these jamas not liable to enhancement on the ground that mokarari right was confirmed under contrast by pattas granted by previous putnidars?" The first Court held that the mokarari right created by these leases was an incumbrance from which the putni right is free under Section 11 of the Putni Regulation, VIII of 1819. The lower Appellate Court held that the Settlement Officer was wrong in treating the defendants as tenure-holders whose rights become voidable on the sale of the putni under the Regulation. He held that they were hereditary resident cultivators, to whom the proviso to Section 11 of that Regulation was applicable. But he held that that proviso did not protect them from liability to pay higher rent on proof of the condition which made their rents liable to enhancement under the Bengal Tenancy Act.

(3.) Here I think the lower Appellate Court was wrong. On the finding that the defendants were resident hereditary cultivators, they were dearly entitled to the protection of the proviso in the 3rd Clause of Section 11 of the Putni Regulation. That Clause provides that nothing contained in the Section shall entitle the purchaser of a Taluk to cancel bona fide engagements made to such tenants by the late incumbent, except it be proved in a regular suit, to be brought by such purchaser for the adjustment of his rent, that a higher rate would have been demandable at the time such engagements were contracted by his predecessor. The language of the Section seems perfectly clear, and in fact the learned Pleader for the respondent has not tried to support the view taken by the District Judge that it is sufficient to prove what is a fair rate allowable at the present moment. It has been proved in all the oases to which these appeals relate except one, and that is Suit No. 1688 of 1892 which corresponds to Second Appeal No. 655 of 1918, that there were engagements made between the tenants and the previous putnidar. No suggestion is made that these-engagements were not made in good faith, and until these engagements are cancelled, the defendants are not liable to pay any rate in excess of these engagements.