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Gopal Chandra Chanda Vs. Dwarika Nath Bepari and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1941Cal446
AppellantGopal Chandra Chanda
RespondentDwarika Nath Bepari and ors.
Cases ReferredBrojo Soondur Gossamee v. Juggut Chunder Dey
Excerpt:
- .....fixed. proceeding on the latter view, the plaintiff instituted the present suit for assessment of fair rent. the decision of the dispute depends upon the interpretation of ex. 1. this apparently simple dispute has led to most protracted proceedings. the munsif decided in favour of the defendants. it is difficult to avoid the conclusion that there was a certain amount of confusion. at any rate, his judgment was anything but con-elusive. he summed up as follows:be that as it may, to claim a fair and equitable rent the plaintiff should have prayed for local investigation to find out the prevailing rate of rent paid by the tenants in the locality in question. that has not been done. hence, considering the circumstances the court is unable to assess the fair and equitable rent for the.....
Judgment:

Henderson, J.

1. This appeal is by the plain-tiff. The dispute between the parties is whether the principal defendant held at a rent of Rs. 3 or whether no rent has been fixed. Proceeding on the latter view, the plaintiff instituted the present suit for assessment of fair rent. The decision of the dispute depends upon the interpretation of Ex. 1. This apparently simple dispute has led to most protracted proceedings. The Munsif decided in favour of the defendants. It is difficult to avoid the conclusion that there was a certain amount of confusion. At any rate, his judgment was anything but con-elusive. He summed up as follows:

Be that as it may, to claim a fair and equitable rent the plaintiff should have prayed for local investigation to find out the prevailing rate of rent paid by the tenants in the locality in question. That has not been done. Hence, considering the circumstances the Court is unable to assess the fair and equitable rent for the rent-land in this suit.

2. Now, that is a strong indication that he was going to overrule the defence contention that the rent had already been fixed. He then, however, made a complete volte-face and finished as follows:

In view of this state of affairs the plaintiff is entitled to get rents at the rate of Rs. 3 per year from the share of the plaintiff and cosharer defendant 8. Hence, the point is found in favour of the defendants.

3. Thus, however inconclusive the judgment may have been, the decision itself was in favour of the defendants. There was therefore nothing for them to appeal against and their failure to appeal or to file a cross-objection could not affect their right to have the matter decided in a higher Court. The plaintiff appealed. The Subordinate Judge in an equally inconclusive judgment agreed with the Munsif that the materials for assessing fair rent were insufficient. Instead of following the proper procedure, he made an order which is fairly frequently made and which generally leads to trouble. He remanded the whole suit. At the trial the Munsif delivered a careful judgment and assessed fair rent. The defendant appealed. The Subordinate Judge held that the rent was fixed at Rs. 3. He accordingly declined to consider the question of assessing a fair rent and restored the original decision of the first Munsif. The plaintiff now appeals to this Court and two points have been pressed in support of the appeal, (1) that after the order of remand the dispute between the parties had been finally determined and the only question remaining was the assessment of fair rent; and (2) that the decision of the Subordinate Judge on the merits was wrong. On the first point Mr. Guha contended that, at any rate, the order of the Subordinate Judge was a bad order. After the remand the appellate Court could only consider the assessment of fair rent and had no authority to re-open the main issue which had already been determined at the first hearing of the appeal. There is ample authority for this proposition and I need only refer to the case of Brojo Soondur Gossamee v. Juggut Chunder Dey ('74) 21 WR 199. Their Lordships said this:

It is necessary to observe also that the District Judge, in hearing this appeal after a remand by the Subordinate Judge of the District, seems to have thought himself at liberty to question and dissent from the issues framed by the Subordinate Judge when the appeal was before him. In this respect as to the hearing of an appeal from the Munsif's decision, the District Judge has no authority to vary or ignore the directions made by an Appellate Court of co-ordinate jurisdiction ....

4. There remains the further question whether the matter could be considered in this Court. Both points really depend upon the interpretation of the remanding judgment made by the first Subordinate Judge. The effect of the order of remand on the power of this Court to decide the question will depend, to some extent, upon whether it was open to the defendants to appeal against that order. The order of remand made in the present case was certainly not one under Order 41, Rule 23. It was made in the inherent jurisdiction of the Court. Apart from other considerations, there would be no appeal against it unless it could be said that the order amounts to a decree in accordance with the definition in Section 2 of the Code. It could not possibly be said to amount to a decree unless it finally decided the main dispute between the parties. I have already indicated that the judgment was almost as inconclusive as that of the first Munsif. It concluded as follows:

The rate of rent paid by the majority of tenants is the prevailing rate. There is no evidence as to how many tenants are in the mouzasor what is the lowest rate. The best course would therefore be to remand the suit to the trial Court for further investigation of the question of fair and equitable rent.

5. This undoubtedly implies that the learned Judge intended to overrule the defence. But in an earlier passage of the judgment he said this:

A kabuliyat was taken by defendant 9 in 1300 B.S. at the jama of Rs. 32 and the settlement record shows that jama in the 8 annas share. The kabuliyat is not before us and so we are not in a position to say whether it offends against Section 29, Ben. Ten. Act. In the application by the plaintiff for taking in additional evidence, I find that 4 parchas and some decrees and plaints were filed and tendered in the trial Court but for some reason or other these were not marked exhibits. These are material documents for investigation of the question as to the prevailing rate or average rate or lowest rate in the locality.

6. Now, that equally implies that the defendants' case was established. In a suit for assessment of fair rent, Section 29, Ben. Ten. Act, could not possibly have any application. In this part of the judgment the learned Judge seems to be considering whether he ought to decree an enhancement on certain grounds among others, that the land was being held at a rate lower than the prevailing rate. Taking the judgment as a whole, it appears that the learned Judge was more impressed by the scanty evidence than by anything else and that he remanded the suit without determining anything. Had he intended to determine the real dispute finally, it is difficult to see why he did not himself take evidence as to fair rent instead of remanding the whole suit. As it cannot be said that this judgment decided the point, it was certainly open to the second Subordinate Judge to decide it and it can also be pressed by either side in this Court. There remains the question of the merits. The finally published Record of Rights supports the defendants. It was, therefore, for the plaintiff to rebut it. The only means open to the plaintiff was by relying upon the original lease, Ex. 1, and the interpretation of that lease is certainly a question of law. This document admittedly created the relationship of landlord and tenant between the parties. I am unable to see how the payment of Rs. 6, referred to as rent, could be anything but rent. If it is not rent, I cannot imagine what it is. It is the payment of an annual sum of money by which the defendants are entitled to hold the land as tenants under the plaintiff. Undoubtedly, the intention of the parties was that it should be enhanced later on. As, however, it would be difficult under the law regarding the enhancement of rent to reach the figure claimed by the plaintiff as a fair rent, the present claim for assessment has been put forward. It was really misconceived and has been properly rejected. The appeal is dismissed with costs. Leave to appeal under Clause 15, Letters Patent, is refused.


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