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Madhu Sudan Mullick and ors. Vs. Jamirudd1n Sheikh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.767
AppellantMadhu Sudan Mullick and ors.
RespondentJamirudd1n Sheikh
Excerpt:
bengal tenancy act (viii b. c. of 1885), section 50, clause 20, presumption under, whether arises where there has been alteration in holding - bent receipts, tenant, whether hound to produce. - .....the court of appeal below gave a decree for additional rent for the excess area at the prevailing rate of rent, but refused to allow any enhancement with respect to the land included in the original holding namely, 8 bighas 5. cottas on the ground that the defendant had held at the same rent for a period of twenty years before the institution of the suit, and that therefore, the rent could not be enhanced.3. the plaintiffs have appealed to this court and it is contended before us that as there has been an alteration in the area of the holding held by the defendant the presumption under section 50 of the bengal tenancy act does not arise and the plaintiffs are entitled to an increape of rent for all the lands held by the defendant. but that section lays down that 'where a tenure-holder.....
Judgment:

1. This appeal arises oat of a suit for enhancement of rent of a holding under Section MO of the Bengal Tenancy Act and also for additional rent on account of additional area in the holding.

2. The defendant had a holding of 8 bighas and 5 cottas at a rent of Rs. 6-10 16 gimlets. It has, however, been found that he is in possession of 2 bighas odd in excess of the area which he had been holding before. The Court of Appeal below gave a decree for additional rent for the excess area at the prevailing rate of rent, but refused to allow any enhancement with respect to the land included in the original holding namely, 8 bighas 5. cottas on the ground that the defendant had held at the same rent for a period of twenty years before the institution of the suit, and that therefore, the rent could not be enhanced.

3. The plaintiffs have appealed to this Court and it is contended before us that as there has been an alteration in the area of the holding held by the defendant the presumption under Section 50 of the Bengal Tenancy Act does not arise and the plaintiffs are entitled to an increape of rent for all the lands held by the defendant. But that Section lays down that 'where a tenure-holder or a raiynt and his predecessor-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 increase except on the ground of an alteration in the area of the tenure or holding.' So that it is only an account of the excess area of the holding that the rent can be increased, and the Section lays down that except that, there shall be no increase in the rent in such cases.

4. It is next contended that the learned Subordinate Judge was in error in holding that there was any presumption under Section 50 of the Bengal Tenancy Act when defendant has not proved rent receipts showing payment of rent at ft uniform rate for twenty years before the institution of the suit.

5. The learned Subordinate Judge has, however, found, 'It is admitted that the old holding of Rs. 6 odd has been in defendant's possession at the same rate at least from 1290 up to 1317. Their chittas and the admission in the plaint combine to prove the facts.' Then he goes on to refer to the fact that the plaintiffs did not produce their collection papers and counterfoils which were called for from them. In the first place it seems from the words quoted above that there was an admission by the Pleader for the plaintiffs that the defendant held at the same rent from 1290 to 1317. However that may be, there are certain chittas produced by the plaintiffs and the learned Subordinate Judge relies upon the chill as in support of that fact. It is contended by the learned Vakil for the appellant that the chittas cannot prove payment of rent and it was absolutely necessary for the tenant to prove actual payment of rent and to produce his dakhilas in order to avail himself of the presumption under Section 50 of the Bengal Tenancy Act. But all that was to be proved under the sections was that the tenant had held at a rent or rate of rent which had not been changed during twenty years immediately preceding the institution of the suit. Ordinarily in order to prove that the rent had not been varied for twenty years previous to the institution of the suit the raiyat can give what is the best proof of non-variation viz., that they had paid uniformly for the twenty years preceding the suit, and the best evidence of payment being the rent receipts, they are ordinarily filed to support the payment. If, however, the zemindar's own papers prove that the tenant held the land at the same rent or rate of rent for twenty years it is not necessary for the tenant to produce his rent receipts. The chittas produced in this case, at any rate some of them, are not merely record of measurement of land but they record the rent and the rate of rent at which the tenant held the land. If the chittas prove that the defendant had been holding the land at the same rent, namely, Rs. 6-10-16 gandat for twenty years before the institution of the suit, the defendant need not produce his rent receipts. The learned Subordinate Judge has found that the chittas proved the fact that the defendant had been holding at the same rent at least from 1290 to 1317. It has not been shown to us that this finding is incorrect, or is not supported by the chittas upon which it is based. That being so the appeal must fail and is dismissed with costs.


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