NABENDRA KISHORE ROY Vs. CHOUDHURY MIAN

JUDGEMENT

(1.) These five appeals arise out of suits for enhancement of rent under Section 30 (b), Ben. Ten, Act, 1885. In some cases there was also a claim for increase of. rent under Section 52, but it was given up. Of these five appeals it is admitted by the appellant that two namely S. A. Nos. 2337 and 2043 of 192 , must fail, because in the first case some of the respondents have died and no substitution has been made in their place, and in the second case there was no claim under Section 30 (b). So these appeals are dismissed with costs - one gold mohur in each case.

(2.) In the remaining three appeals the question raised is that the view taken by the lower Courts which dismissed the plaintiff's suits is incorrect in law. The question for determination depends upon the true construction of the kabuliyat dated the 4 Chaitra 1288 B. S., under which the defendants claim a permanent mokarrari right. The kabuliyat begins with a table with five columns. Column 1 gives a description of the land leased and the total area thereof. Column 2 gives the rate of rent per kani. Column 3 mentions "jama mokra." The fourth gives the amount of Sultana at three pies per rupee and the fifth or the last column gives the total amount of rent. In the body of the document the important passages are: I execute kabuliyat to the effect that I shall pay the above-mentioned total amount of rent year by year according to kists specified below. I shall pay the road-cess, public works cess and dak cess etc., which are now payable and other impositions which may be levied under the law in future...I shall pay without notice additional rent at the above-mentioned rate from this year for the land which may be found in excess upon measurement....I shall on keeping intact the limits and boundaries, and abiding by future survey and jamabandi, enjoy and possess the land down to my sons, sons son and other heirs.

(3.) Both the Courts below have held that this document creates a permanent moka-rari occupancy right in the tenants and therefore the plaintiff is not entitled to claim enhancement on any ground other than the ground of additional area. The trial Court has been greatly influenced by the use of the expression "jama mokra" in Column 3 of the table given in front of the document. The learned Subordinate Judge on appeal has expressed his doubt whether the Munsif is correct in the view he took about the meaning of the word "mokra." But he agrees with the trial Court in the view that as the document has mentioned that rent may be increased in case of additional area being found in possession of the tenant, the intention of the parties was that it can be enhanced only on this ground and upon no other and therefore the plaintiff is not entitled to claim enhancement for rise in the price of staple food-crops. With regard to the view taken by the learned Subordinate Judge I am of opinion that it can not be maintained that because the document mentions one circumstance under which enhancement can be claimed by the landlord, ho cannot claim enhancement upon any other ground in the exercise of any other power given to him subsequently by law. In the case of Basanta Kumar Kapali V/s. Satyemdra Mohan Tagore it was held that it cannot be asserted that mention of one contingency in one document does not exclude all other contingencies giving rise to the claim of the landlord for enhancement of rent when the right has been conferred on him by law after the contract. I have therefore to construe the entire document in order to find out the real intention of the parties. It has been strenuously argued on behalf of the respondents that the expression , jama mokra" gives clear indication of the rent being fixed in perpetuity and reliance has been placed in support of this view on Raja Rishikesh Law V/s. Satish Chandra Pal A.I.R. 1922 Cal. 123 whore, in a document written by an Uriya scribe, the learned Judges have hold that mokra" is a corruption of mokarari" and means fixed in perpetuity. This view as to the meaning of the term mokra has been examined in Letters Patent Appeal No. 46 of 1926 in appeal from Appellate Decree No. 2165 of 1924 {decided on 4 May 1927) where it was observed that the word "mokra" need not necessarily bear everywhere the meaning given to it in the case of Raja Rihikeah Law V/s. Satinh Chandra Pal A.I.R. 1922 Cal. 123. The word "mokra" admittedly is a corruption of the Arabic word mokarrar" which is derived from the word karar meaning agreement. The inflexions of karar, "mokarar" or mukarrara" which has taken the Indian form of mokarrari" means agreed upon or fixed." The word "mokarari" has assumed a special signification by the usage. So that the word mokarari" or mokra in itself does not signify perpetual fixity. But if a document indicates that it was used in place of mokarari it certainly should have that significance.