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Profulla Nath Tagore Vs. Mahammed Maliha and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1937Cal276
AppellantProfulla Nath Tagore
RespondentMahammed Maliha and ors.
Cases ReferredNaresh Chandra Basu v. Hujjatali Akon
Excerpt:
- .....ten. act, however, lays down certain exceptions to this general rule. by this section where the rent of a tenure or holding has been settled under ch. 10 it is not liable to be enhanced except on the ground of a landlord's improvement or of a subsequent alteration in the area of the tenure or holding for 15 years, in the case of a tenure or an occupancy holding or the holding of an underraiyat having occupancy rights and for five years in the case of a non-occupancy holding or the holding of an underraiyat not having occupancy rights and no such rent should be reduced within the aforesaid period save on the ground of alteration in the area of the holding or on the ground specified in section 38, clause (a).3. the controversy between the parties in this appeal is whether the last part.....
Judgment:

1. This is a plaintiff's appeal arising out of suit for recovery of arrears of rent. The defence of the tenant-defendants is that they are entitled to get reduction of rent on account of diminution of the area of this tenancy by diluvion. The trial Court decreed the suit ex parte at the rate claimed by the plaintiff. On appeal the learned Additional District Judge has come to the conclusion that the tenants are entitled to the benefit of Section 52(1)(b), Ben. Ten. Act and are entitled to get a reduction of their rents on account of alteration in the area of their tenancies by diluvion. He accordingly remanded the suit to the trial Court for determination of the amount by which the rent of the tenancy should be reduced. Hence this appeal by the plaintiff-landlord.

2. The tenancy in question is admittedly within a temporary settled estate. The plaintiff has taken settlement of this estate from Government for a certain period after the rents of the tenancies within the estate were settled by proceedings under Ch. 10, Ben. Ten. Act. The tenancy which the defendants hold under the plaintiff is admittedly a tenure. By Section 52(1)(b), Ben. Ten. Act, every tenant including a tenure-holder is entitled to a reduction of rent in respect of any deficiency in the area of his tenancy by diluvion or otherwise. Section 113, Ben. Ten. Act, however, lays down certain exceptions to this general rule. By this section where the rent of a tenure or holding has been settled under Ch. 10 it is not liable to be enhanced except on the ground of a landlord's improvement or of a subsequent alteration in the area of the tenure or holding for 15 years, in the case of a tenure or an occupancy holding or the holding of an underraiyat having occupancy rights and for five years in the case of a non-occupancy holding or the holding of an underraiyat not having occupancy rights and no such rent should be reduced within the aforesaid period save on the ground of alteration in the area of the holding or on the ground specified in Section 38, Clause (a).

3. The controversy between the parties in this appeal is whether the last part of Section 113 deprives a tenure-holder of his right to get reduction of rent under Section 52(1)(b). The words 'such rent' in the last part of Section 113 mean rent as has been mentioned in the beginning of the section, namely rent of a tenure or holding which has been settled under Ch. 10. The question is whether the word 'holding' in the last part of the section includes a tenure, that is, whether it means a tenancy. In the first part of the section a distinction has been made between a tenure and a holding. The word 'holding' in the last part therefore must be taken in the same sense in which it has been used in the first part. The word 'holding' therefore in the last part does not include a tenure. It is contended by Mr. Roy appearing on behalf of the tenants that either the Legislature intended to include tenures within the word 'holding' in the last part of the section or the word 'tenure' was accidentally omitted, inasmuch as it cannot be conceived that the Legislature intended to deprive the tenure-holders of their rights to get reduction from the rent payable by them to their landlords although the rents payable to them by the raiyats holding under them would be reduced on account of deficiency in the area of their holdings by diluvion. Mr. Roy conceded that there was no provision in the law under which the plaintiff could claim reduction of his revenue from Government during the period of his settlement. It may be that the Legislature wanted to place the proprietors as well as all middlemen on the same footing and wanted to give protection only to the actual cultivators of the soil. We are, however, not concerned with the policy or logic of the law. We have got to interpret the law as it stands. The meaning of the word 'holding' in latter part of Section 113 is the same as in the beginning of the section. It cannot include a tenure. This view is supported by the decision in the case in Naresh Chandra Basu v. Hujjatali Akon AIR 1926 Cal 1240. Under these circumstances we are of opinion that the tenants in the present case are not entitled to get the benefit of Section 52(1)(b), Ben. Ten. Act, and are therefore not entitled to claim any reduction of their rent on account of deficiency in their area of their tenancy by diluvion. The result therefore is that this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored. There will be no order for costs in this appeal.


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