1. The plaintiffs contend in special appeal that the lower Court's decision is erroneous in law. That having regard to the express stipulation in the potta of 1253 (1846) they are entitled to enhance the rent of the tenure without serving a notice upon the tenants under Section 14 of Beng. Act VIII of 1869.
They rely on two decisions of this Court--Bhyrud Chunder Mojoomdar v. Huro Prosunno Bhuttacharjee. (17 W.R., 258) and Ram Narain Lall v. Gumbeer Singh (19 W.R., 188)--in support of their contention.
The respondents on the other hand have cited before us two reported decisions--Burodakant Roy v. Sib Sunkuree Dossee (4 W.R., Act X Rul., 35) and Ekram Mundul v. Holodhur Pal (I.L.R., 3 Cal., 271), and also rely on:an unreported decision of the Court, dated 2nd January 1878, in special appeals, Nos. 921, 922 and 923 of 1877.
On referring to these cases we find that there is a conflict in the decisions of this Court upon the point raised before us, and as the question involved is one of general importance we think it right to refer it to a Full Bench.
The question referred is, whether in accordance with the express stipulation of the potta of 1253 (1846) the plaintiff's are entitled to recover rent for the year 1279 (1872) at a higher rate than what was payable in the year preceding, without serving upon the tenants any notice under Section 14 of Beng. Act V1I1 of 1869.
2. On the case coming on for hearing before a Full Bench, Baboo Mohini Mohan Roy and Baboo Bungshidhur Sen appeared for the Appellants.--The present case does not properly come under Section 14 of Beng. Act VIII of 1869, as the potta prevents the landlords from enhancing the rent; the suit is one for arrears of rent according to the kabuliat. The meaning of Section 14 is, that although a tenant might not be protected from the ordinary rules of enhancement, still he is not liable to pay a higher rent unless a notice be served upon him, but if there be a stipulation in his lease that the land should be measured and paid for accordingly, and at such measurement a larger amount of land is found than previously was paid for, then no notice is necessary, as the rent is payable under the kabuliat. [Garth, C.J.--It has been held that if a measurement has been made no notice is necessary, but if no measurement has been taken then notice must be given under the Rent Act. The whole question is one of measurement, and the case ought to be sent back in order to determine if measurement has been made? A suit to enhance rent according to contract is not on the same footing as a case of enhancement under the Act, and enhancement under the Act has a technical meaning, and is wholly irrespective of any lease. See Bhyrud Chunder Mojoomdar v. Huro Prosunno Bhuttacharjee, (17 W.R., 258), Ram Narain Lall v. Gumbeer Sing (19 W.R., 188), Mudhoo Manjee v. Rajah Nil Monee Singh (18 W.R., 533), Brojo Soonduree Debia v. Collins (13 W.R., 359), and an unreported decision in special appeal No. 759 of 1878.
3. Baboo Rash Behary Ghose for the Respondents.--Notice is necessary under the Act. [Pontifex, J.--Suppose you rent land at Re. 1 a biga with a stipulation that when called upon, you will pay Rs. 2 a biga, is notice under Section 14 then necessary?] Some kind of notice is necessary, in order that the tenant may have the option of quitting his holding rather than have his burden doubled. Pontifex, J.--Supposing land were let out at a rental which doubled itself each year for a certain number of years, would then notice be necessary?] Yes, because there are a certain class of people in India whom the legislature have thought right to protect against their own special contracts, and it may be that the ryots who hold land in India are such, and therefore the Government have thought fit to lay down that notice must be served before enhancement. I submit that notwithstanding the terms of any agreement between the landlord and tenant, the latter is still entitled to notice before his rent can be enhanced. See the case of Ekram Mundul v. Holodhur Pal (I.L.R., 3 Cal., 271), Burodakant Roy v. Sib Sunkuree Dossee (4 W.R. Act X, Rul., 35).
4. The Judgment of the Full Bench was delivered by.
5. We are of opinion that, under the circumstances stated, it was not necessary for the plaintiffs to give any notice under Section 14 of Beng. Act, VIII of 1869, before bringing a suit against the defendant for the increased rent.
6. It is apparent from the language of the section itself, as well as from other provisions in the Act, that Section 14 was never intended to apply to a case like the present.
7. Immediately upon the measurement being made between the parties, and the extent of the cultivated land ascertained the defendant by the express terms of the contract of tenancy would have to pay an increased rent in proportion to the increased area brought into cultivation; whereas, if the provisions of Section 14 were binding upon the plaintiffs, the increased rent would become payable, not from the time of the measurement, but from the expiration of the notice to be given under that section.
8. We think, therefore, that the question referred to us should be answered in the affirmative; and as the Subordinate Judge has decided against the plaintiff upon the ground that no notice was given, without trying the sixth and seventh issues, which relate to the measurement, the case must be remanded to the lower Court for the trial of those issues. Costs will abide the result.