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Atul Chandra Roy Vs. Sm. Charubala Dasi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1019 of 1948
Judge
Reported inAIR1953Cal466
ActsTenancy Law; ;Bengal Tenancy Act, 1885 - Sections 6, 38, 38(1) and 52
AppellantAtul Chandra Roy
RespondentSm. Charubala Dasi and ors.
Appellant AdvocateArun Kumar Janah and ;Sarat Chandra Janah, Advs.
Respondent AdvocateSambhu Nath Banerjee, Adv.
DispositionAppeal dismissed
Cases ReferredDukha Lal v. Mt. Manabati
Excerpt:
- .....and whether it would permanently debar the plaintiff landlord from claiming the full quantity of sanja rent. suffice it to say that .81 acres off land of the tenancy could not be cultivated for the period of claim. the only contention urged on behalf of the appellant was that the defendants are tenure-holders and not occupancy raiyats, and so they are not entitled to get any reduction of rent for deterioration of' the land by deposit of sand, a benefit which has been conferred upon occupancy raiyats only by section 38(1) (a) of the bengal tenancy act. it was urged on behalf of the appellant that while reduction of rent for reduction of area has been expressly provided for in the case of all classes of tenants including tenure-holders under section 52 of the bengal tenancy act, no.....
Judgment:

Renupada Mukherjee, J.

1. This second appeal has been preferred by the plaintiff landlord whose claim for produce rent his been proportionately reduced by the courts below owing to deterioration of a part of the tenancy land on account of deposit of sand. In the trial court, the plaintiff claimed cash rent at Rs. 24-12-17 gandas per year and the value of 'sanja' paddy at 1 ara 9 kuris and 3 mans for the years. 1349 B. S. to six months of 1351 B. S. with cesses and damages.

2. The suit was contested in the trial court on three questions, namely, (1) what was the measure of an ara, kuri and man in terms of maunds and seers, (2) what amount of cesses is recoverable by the plaintiff and (3) whether the defendants can get proportionate reduction of rent.

3. The decision of the lower appellate court has not been challenged by the appellant as regards the first two questions. Only the third question viz., whether the defendants are entitled to reduction of 'sanja' rent on account of deterioration of the tenancy land was canvassed in this appeal by the appellant.

4. It was held by both the courts below that 'sanja' paddy or produce rent is deliverable for 4 bighas 13 cottas and 8 chattacks of land out of which 81 of land corresponding to 2 bighas by local measurement have undergone deterioration by deposit of sand and could not be cultivated during the period in suit. So by allowing proportionate reduction of 11 kuris for the area which lay fallow during the years in claim the courts below allowed 'sanja' paddy at 14 kuris and 3 mans and the value of 'sanja' paddy was calculated on that basis. The plaintiff has appealed against this part of the judgment and decree of the lower appellate Court.

5. The only point which requires decision is: are the respondents who are tenure-holders entitled to reduction of, rent on account of deterioration of a portion of their land by deposit of sand?

6. There can be no question that a portion of respondents' 'sanja'-paying land measuring 2 bighas by local measurement has undergone deterioration by a natural cause, namely, by deposit of sand. The deterioration is due to a circumstance over which the tenants had no control and the damaged land could not be cultivated for the years for which 'sanja' paddy has been claimed. It is not necessary here to determine whether the deterioration is of a permanent character and whether it would permanently debar the plaintiff landlord from claiming the full quantity of sanja rent. Suffice it to say that .81 acres off land of the tenancy could not be cultivated for the period of claim. The only contention urged on behalf of the appellant was that the defendants are tenure-holders and not occupancy raiyats, and so they are not entitled to get any reduction of rent for deterioration of' the land by deposit of sand, a benefit which has been conferred upon occupancy raiyats only by Section 38(1) (a) of the Bengal Tenancy Act. It was urged on behalf of the appellant that while reduction of rent for reduction of area has been expressly provided for in the case of all classes of tenants including tenure-holders under Section 52 of the Bengal Tenancy Act, no benefit corresponding to that mentioned in Section 38(1)(a) has been made available to tenure-holders, and so, they are not entitled to claim any reduction of rent for deterioration of land. In support of this contention, the case of - 'Dukha Lal v. Mt. Manabati', AIR 1936 Pat 341 (A) was cited by the learned Advocate lor the plaintiff-appellant. This case, however, applies to an Istimrari mukarrari tenant whose rent is fixed in perpetuity and is not liable to alteration at the instance of the landlord on any ground except alteration in area. The defendants, on the other hand, are ordinary tenure holders. Their rent is not certainly lix-ed in perpetuity and is liable to enhancement at the instance of the landlord under Section 6, Bengal Tenancy Act. That section runs as follows:

'Where a tenure has been held from the time of the Permanent Settlement, its rent shall not be liable to enhancement except on proof--

(a) that the landlord under whom it is held is entitled to enhance the rent thereof either by local custom or by the conditions under which the tenure is held, or

(b) that the tenure-holder, by receiving reductions of his rent, otherwise than on account of a diminution of the area of the tenure, has subjected himself to the payment of the increase demanded, and that the lands are capable of affording it.'

The expression 'by receiving reductions of his rent' in Clause (b) of this section is important. This expression certainly contemplates reduction of rent by agreement between the parties. But it cannot be said that this expression excludes a case of reduction of rent by a suit for just and sufficient cause. The Bengal Tenancy Act no doubt contains no specific provision corresponding to Section 38(1) (a) under which an ordinary tenure-holder may claim reduction of rent. But such a claim is founded on principles of natural justice and equity and is not repugnant to any of the provisions of the Bengal Tenancy Act, particularly those provisions which govern the incidents of an ordinary tenure. There is nothing in the Act to indicate that either the landlord or the tenant would be precluded from claiming any right or relief under the general law or under equity unless such right or claim is specifically provided for in the Act itself.

7. In these circumstances, the courts below have, in my opinion, applied correct principles of law in allowing proportionate reduction of 'sanja' rent for deterioration of a part of the tenancy land.

8. In the result, the appeal must fail. The appeal is, accordingly, dismissed with costs and the judgment and decree of the lower appellate court' are hereby confirmed.


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