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Kali Prasonno Maity and anr. Vs. the Secretary of State for India and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in51Ind.Cas.144
AppellantKali Prasonno Maity and anr.
RespondentThe Secretary of State for India and ors.
Excerpt:
bengal tenancy act (viii b.c. of 1885), sections 102(h), 104h - rent, enhancement of, on ground of rise in prices of crops--suit for revision of rent, maintainability of--special conditions and incidents of tenancy--rent, whether special incident. - .....and incidents, mentioned in section 102(h) and the rent payable comes under section 102(e). a point was made or attempted to be made that because the breviate to section 158 of the act mentions 'application to determine incidents of tenancy,' therefore, the rent payable is an incident of the tenancy. there are two answers to that: section 104h(3)(g) does not mention the incidents generally but refers to the special incidents, and the special incidents are mentioned in section 102(h). section 104h(3)(g) does not apply to incidents generally but to special incidents. rent obviously is not a special incident, because all lands held from the landlord are generally liable to pay rent and that would be a general incident and not a special incident. in our opinion, the learned judge was quite.....
Judgment:

1. This is an appeal by the plaintiffs against the decision of the learned District Judge of Midnapore, dated the 23rd March 1916, modifying the decision of the Subordinate Judge of the same place. The suit was brought under the terms of Section 104H of the Bengal Tenancy Act. The learned District Judge has held that the matter raised in the suit could not be raised under the terms of Section 104H of the Bengal Tenancy Act. As against that, the learned Vakil, who has appeared in support of the appeal, states that the Record of Rights in this case was not published under Sections 104A to 104F and that, therefore, he can, under the general law of the land, question this document as being a document prepared without any legal authority at all. It is quite clear that the evidence does not establish any such case. There is nothing to show that this document was prepared in direct disobedience to the orders of the Government or that the Government had ever made an order under the terms of the Act directing that the rent of this tenancy should not be settled. One cannot, on a mere surmise, state that the rent has not been settled. If, then, the rent has been settled, it is quite clear that, under the terms of Section 104H, this question cannot be gone into in this suit. It was suggested that this case came under the definition of special conditions and incidents of the tenancy mentioned in Section 104H(3)(g) of the Bengal Tenancy Act. But that clearly is not so. The special conditions and incidents refer to the special conditions and incidents, mentioned in Section 102(h) and the rent payable comes under Section 102(e). A point was made or attempted to be made that because the breviate to Section 158 of the Act mentions 'application to determine incidents of tenancy,' therefore, the rent payable is an incident of the tenancy. There are two answers to that: Section 104H(3)(g) does not mention the incidents generally but refers to the special incidents, and the special incidents are mentioned in Section 102(h). Section 104H(3)(g) does not apply to incidents generally but to special incidents. Rent obviously is not a special incident, because all lands held from the landlord are generally liable to pay rent and that would be a general incident and not a special incident. In our opinion, the learned Judge was quite right when he cams to the conclusion that this suit was not competent. In that view the present appeal fails and must be dismissed with costs.


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