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The Secretary of State for India in Council Vs. Ram Charan Acharjya and ors. and - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in70Ind.Cas.207
AppellantThe Secretary of State for India in Council
RespondentRam Charan Acharjya and ors. And; Sarat Chandra Hazra and ors.
Excerpt:
bengal tenancy act (viii of 1885), sections 50, 104-h - tenancy of known origin--presumption under section 50, whether applicable--suit under section 104-h, when lies. - .....and that the suit was in time. i see no reason to take a contrary-view.2. there is, further, a cross-objection by the respondent which remains to be considered. two questions are raised by the cross-objection. it is contended, firstly, that the court of appeal below should have held that the rent of the holding was not liable to enhancement and that a presumption under section 50 of the bengal tenancy act arising from proof of uniform payment of rent for over 20 years did apply to this case. upon the reading of the pleadings and evidence put before us, i am of opinion that this ground fails, because that section could not apply where the origin of the tenancy is known, and, according to the construction which i have put upon the pleadings and evidence, the origin of the tenancy is.....
Judgment:

John Woodroffe, J.

1. In this appeal the only question argued before us is whether the suit is in time, having been instituted more than six months after the date of the final publication under Section 104-H of the Bengal Tenancy Act. A suit of this nature has to be brought within six months from the date of the final publication. Both the learned Munsif and the District Judge were of opinion that the period of six months expired during the vacation and the suit was instituted on the day the Court re-opened and that the suit was in time. I see no reason to take a contrary-view.

2. There is, further, a cross-objection by the respondent which remains to be considered. Two questions are raised by the cross-objection. It is contended, firstly, that the Court of Appeal below should have held that the rent of the holding was not liable to enhancement and that a presumption under Section 50 of the Bengal Tenancy Act arising from proof of uniform payment of rent for over 20 years did apply to this case. Upon the reading of the pleadings and evidence put before us, I am of opinion that this ground fails, because that section could not apply where the origin of the tenancy is known, and, according to the construction which I have put upon the pleadings and evidence, the origin of the tenancy is known. Therefore, Section 50 does not apply.

3. The second point is, that the lower Appellate Court erred in holding that the Civil Court could not revise the rent fixed in the Settlement Rent-Roll. We have been addressed at some length upon this point but I am not satisfied that the cross-objector has shown that learned Judge has come to a wrong conclusion upon this question. Exception has been taken to the very great apparent, increase in the rent from Rs. 4 odd to Rs. 81 odd. In this connection it is to be remembered that the tenant had been in possession of this land at a very low rental of Rs. 4 odd for over 30 years.

4. I am of opinion therefore, that the cross-objection also fails and should be dismissed.

5. As both the appeals and cross-objection, fail no order is made as regards costs.

Suhrawardy, J.

6. I agree in dismissing the appeal on the ground stated in the judgment of my learned brother. I also agree in dismissing the cross-objection.

7. The plaintiff-respondent brought a suit for recovery or confirmation of possession of a portion of his tenancy which was wrongly left out by the Settlement Officer in the Record of Right. He further claimed that his rent was not liable to enhancement. He adduced evidence in support of this contention by production of rent-receipts showing uniform payment of rent for a period of more than 20 years. The suit, as framed, is, to my mind, competent under Section 104-H of the Bengal Tenancy Act. The Court of appeal below, has found that the plaintiff has failed to prove that his rent is not liable to enhancement and, therefore, his claim under sub-clause (e) or (g), Clause (3), Section 104-H fails. But his claim for a part of his tenancy which was left out has succeeded. That claim evidently was under sub-clause (d) of Clause (3) Section 104-H. It is, therefore, argued that under Clause (4) of that section the Court was bound to settle a fair rent. It seems to me that the result of the plaintiff's success in getting 5 bighas odd added to his tenancy as recorded in the Record of Rights places him in a better position than he originally was, namely, he has now to pay Rs. 81 odd as fixed by the Settlement Officer as rent for 25 bighas instead, of for 30 bighas odd that has been decreed to him by the Court below. He is, therefore, not a person, in tennis of Section 104-H of the Bengal Tenancy Act, 'aggrieved by an entry of a rent, settled in a Settlement Rent-Roll prepared under Section 104-A to 104-F and incorporated in a Record; of Rights finally published under 'section 103-A'. If his claim were solely based upon the omission of a part of his tenancy I am of opinion that he would not have been entitled to bring a suit under Section 104-H, as he would not be a person aggrieved by an entry of a rent, though he might have been entitled to claim relief under some other section of Chapter X. Section 104-H of the Tenancy Act only contemplates a case where a person has been aggrieved so far as an entry of, rent is concerned. I am not persuaded to had that, even if he is not really affected by an entry of rent in the Record of Rights, if he can bring his case under any of the sub-clauses of Clause (3), Section 104-H, he would be entitled to claim a revision of rent under Clause (4) of that section. I, therefore, think that the plaintiff is not entitled to ask the Court on the findings arrived at by the Court of Appeal below to revise the rent as entered in the Settlement Rent-Roll or to settle a fair rent for the land in suit. In this view of the law I think the plaintiff's contention fails, and the cross-objection ought to be dismissed.

IN S.A. No. 2122 OF 1920.

8. Our decision in Second Appeal No. 2121 of 1920 governs this appeal also which is also dismissed. The respondent is entitled to. his costs, one gold mohur.


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