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Narendra Lal Chowdhury and anr. Vs. Benode Behari Sadhukhan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1924Cal143
AppellantNarendra Lal Chowdhury and anr.
RespondentBenode Behari Sadhukhan
Cases ReferredMohinikanta v. Priyanath A.I.R.
Excerpt:
- .....answer to the claim for enhancement of rent he contended that he had the status of a raiyat at a fixed rate. in support of this position he produced rent-receipts to show that he had held the tenancy at the same rate for more than 20 years. the settlement officer held that inasmuch as he was an occupancy raiyat he was not entitled to the benefit of the presumption formulated in section 50 of the bengal tenancy act. on appeal, the special judge held that although the defendant might be an occupancy raiyat, he was entitled to the benefit of the presumption mentioned in section 50. the special judge then considered the rent-receipts, and although receipts for twenty continued years had not been produced, he held that there was sufficient evidence to show that the tenant had held at a.....
Judgment:

1. This is an appeal by the Plaintiff's landlords in a proceeding instituted by them under Section 105 of the Bengal Tenancy Act for settlement of a fair and equitable rent by way of enhancement of the existing rent of the disputed holding. The defendant has been entered as an occupancy raiyat in the record-of-rights. But in answer to the claim for enhancement of rent he contended that he had the status of a raiyat at a fixed rate. In support of this position he produced rent-receipts to show that he had held the tenancy at the same rate for more than 20 years. The settlement officer held that inasmuch as he was an occupancy raiyat he was not entitled to the benefit of the presumption formulated in Section 50 of the Bengal Tenancy Act. On appeal, the Special Judge held that although the defendant might be an occupancy raiyat, he was entitled to the benefit of the presumption mentioned in Section 50. The Special Judge then considered the rent-receipts, and although receipts for twenty continued years had not been produced, he held that there was sufficient evidence to show that the tenant had held at a uniform rate for more than twenty years. This presumption in his opinion was not rebutted in any way. In this view he dismissed the application for enhancement of rent.

2. On behalf of the plaintiffs we have been pressed to hold that an occupancy raiyat is not entitled to the benefit of Section 50. We are of opinion that this contention is opposed to the clear terms of Sub-section (1) of that section which provides that where a raiyat and his predecessors-in-interest have held at a rent or rate of rent which has not been changed from the time of the Permanent Settlement, the rent or rate of rent shall not be liable to be increased except on the ground of alteration in the area of the holding. This embodies the substantive rule of law. Sub-section (2) then proceeds to lay down that if it is proved in any suit or other proceeding under the Bengal Tenancy Act that a raiyat and his predecessors-in-interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the institution of the suit or proceeding, it shall be presumed, until the contrary is shown, that they have held at that rent or rate of rent from the time of the Permanent Settlement. This deals with the mode of proof and raises a rebut-table presumption. We can see no reason why an occupancy raiyat should be excluded from the category of a raiyat for the purposes of this section. Section 4 mentions the following classes of tenants, namely, tenure-holders including under-tenure-holders, raiyats and under-raiyats. Raiyats are then classified as {a) raiyats holding at fixed rates, (b) occupancy raiyats and (c) non-occupancy raiyats. This implies, it is argued, that a person cannot come under two of these categories. This contention is opposed to the decision in Sarbeswar Patra v. Bijoy Chand Mohatap A.I.R. 1922 Cal. 287, where it was held that a raiyat at a fixed rate may become a settled raiyat of the village under Section 20 and thus acquire a right of occupancy within the meaning of Section 21; that the status of a raiyat at a fixed rate can be combined with that of an occupancy raiyat; that the higher status would supersede so much of the lower as might be inconsistent with it and that either status might be used as a shield so far as it extended. There is nothing in the decision in Bansidas v. Jagadip Narain Chowdhury (1898) 24 Cal. 152, which militates against this view. We may add that a raiyat at fixed rate is not created by Section 50, which merely furnishes a rule of evidence to enable a person to prove with facility that he is a raiyat at a fixed rate. We hold accordingly that the defendant was entitled to the benefit of Section 50 notwithstanding the fact that he was recorded as an occupancy raiyat.

3. It has finally been urged that Section 115 debars the defendant from the benefit of Section 50. This contention is based entirely, on a misapprehension. That section, as has been pointed out by a Full Bench of this Court in the case of Pirthi Chand Lal v. Basarat Ali (1910) 37 Cal. 30, does not come into operation until all possible proceedings under Chapter X have been exhausted. The proceeding now before the Court is a proceeding under Section 105.

4. As a last resort, we have been pressed to hold that as the rent-receipts for twenty continuous years have not been produced, the presumption under Section 50 has not been established. This argument is opposed to the decisions in Kattyani Dabea v. Soonduree Dabea (1865) 2 W.R.A.X.R. 60 and Elahee Buksh v. Roopun Telee (1867) 7 W.R. 284, which were accepted as good law in Satis Chandra Biswas v. Nilmadhab Saha A.I.R. 1923 Cal. 665. If the discontinuous receipts produced show that rent has been paid at the same rate for the years covered thereby, the Court may, by an application of the principle of continuity, infer that there has been no change in the intervening periods; see Secretary of State v. Upendra A.I.R. 1923 Cal. 247. We must further remember that what has to be established is not actual payment of rent, but the fact that the tenancy has been held at a certain rate. Preference may in this connection be made to the decision in Mohinikanta v. Priyanath A.I.R. 1922 Cal. 141.

5. The result is that the decree made by the Special Judge is affirmed and this appeal dismissed with costs. We assess the hearing fee at one gold mohur.


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