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Sripati Chandra De and ors. Vs. Kailash Chandra Jana - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1936Cal386,166Ind.Cas.464
AppellantSripati Chandra De and ors.
RespondentKailash Chandra Jana
Excerpt:
- .....to the right of the plaintiffs to claim enhancement in the manner mentioned in their plaint. the tenancy in question comprised 13 parcels of land and fraction of three other parcels; and it was not therefore a holding under the bengal tenancy act, before the definition of holding was amended by the bengal tenancy amendment act 4 of 1928. the defence of the tenant defendant in the suit was that the definition of holding as amended in the year 1928 had no retrospective effect, and as such the plaintiffs as landlords had no right to apply for enhancement of rent under section 30 (b), ben. ten. act.2. the court of first instance came to the conclusion that no vested right of the defendant was affected by the amendment of the definition of holding; the defendant was an occupancy raiyat.....
Judgment:

1. The plaintiffs in the suit in which this appeal under Section 15, Letters Patent, directed against a decision of our learned brother R.C. Mitter, J., has arisen, claimed enhancement of rent, under Section 30 (b), Ben. Ten. Act, in addition to the claim for rent with cesses, and the question for consideration now before us relates to the right of the plaintiffs to claim enhancement in the manner mentioned in their plaint. The tenancy in question comprised 13 parcels of land and fraction of three other parcels; and it was not therefore a holding under the Bengal Tenancy Act, before the definition of holding was amended by the Bengal Tenancy Amendment Act 4 of 1928. The defence of the tenant defendant in the suit was that the definition of holding as amended in the year 1928 had no retrospective effect, and as such the plaintiffs as landlords had no right to apply for enhancement of rent under Section 30 (b), Ben. Ten. Act.

2. The Court of first instance came to the conclusion that no vested right of the defendant was affected by the amendment of the definition of holding; the defendant was an occupancy raiyat under the old law, and he was so now. According to the Munsif, there was a technical flaw to the enhancement of his rent under Section 30, because of something in the nature of a defect or otherwise in the definition of the word holding under the old law, and that has now been removed. On appeal, the Court of appeal below differed from the view taken by the Munsif as mentioned above; and the Subordinate Judge in the lower appellate Court, held that the holding in question was not a holding within the meaning of the old Bengal Tenancy Act, and as such Section 30 (b) had no application. The change in the definition of holding could not legally take away a vested right in the absence of any clear provision in the statute. It was accordingly held by the lower appellate Court, that the rent of the holding in question could not be enhanced under Section 30 (b), Ben. Ten. Act. On second appeal to this Court Mitter, J. affirmed the view taken by the Subordinate Judge in the Court of appeal below.

3. As it has been pointed by the learned Judge Mitter, J. in his judgment, there can be no doubt that if the suit had been decided before the amendment of the definition of holding by Act 4 of 1928, the plaintiff's claim for enhancement on the grounds mentioned in Section 30 (b) would have failed, on the ground that the tenancy in question is not a holding as defined in the Bengal tenancy Act. The learned Judge has rightly observed, and the position cannot be controverted, that the decisions of this Court on the point are uniform since the year 1898, that a tenancy of the description with which we are concerned in the case before us, could not be treated as a holding, so as to attract the provisions contained in Section 30, Ben. Ten. Act, before the amendment of the year 1928. The tenant in the position of the defendant in the case before us, enjoyed immunity from action for enhancement of rent till the amendment of the definition of holding in the year 1928, and as mentioned by Mitter, J. the question for consideration in the case reduced itself to the simple proposition as to whether Section 30, Ben. Ten. Act could be combined with the definition of holding as now amended, so as to give the landlord the right to sue for enhancement of rent in respect of a tenancy created before Act 4 of 1928 came into force. The question has, in our judgment, to be answered in the negative, for the reason given by the learned Judge, namely that the effect of the amendment was to take away an immunity from enhancement enjoyed by the tenant up to February 1929, when Act , 4 of 1928 came into operation, and the provision of the amending Act of 1928 dealing with vested rights could not be given retrospective effect. There can be no controversy as regards the position that every statute which takes away or imposes vested rights acquired under existing laws, creates new obligation or imposes new duties or attaches new disabilities, must be presumed, out of respect for the Legislature, not to have retrospective operation. The creation of a new right in one class of persons is generally attended with imposition of new obligations on, or the interference with vested rights of other classes. A law therefore creating a new right was generally subject to the rule against retrospective operation. The addition made to the definition of holding by the amending Act of 1928 indicates clearly that the immunity from enhancement under Section 30, Ben. Ten. Act, enjoyed by tenants in respect of tenancies comprising undivided shares of parcels of land was taken away, thus interfering with vested rights of tenants and creating new rights in the landlord so far as the operation of Section 30, Ben. Ten. Act, was concerned, in the matter of enhancement of rent, under certain circumstances, and the amendment could not have retrospective effect.

4. The contention raised in support of the appeal before us, that the definition of the word holding in the amending Act of 1928 was merely explanatory, does not bear serious examination, seeing that the decisions of this Court are uniform on the question that a prayer for enhancement of rent under Section 30, Ben. Ten. Act, was not maintainable in the case of a tenancy consisting entirely of undivided shares in parcels of land or partly of entire parcels of land and partly of undivided shares in parcels of land, as in the case before us. The previous law as explained by this Court was changed by the amendment made in the amending Act of 1928, by adding words to the definition of the word holding. There can also be no question that the amendment of the definition of holding affected vested rights of tenants, and conferred rights on the landlords, which did not exist before the amending Act of 1928 came into operation, and as such was a substantive provision removing a disability so far as landlords were concerned, and removing immunity so far as tenants were concerned, in the matter of enhancement of rent as contemplated by Section 30, Ben. Ten. Act; and in no way could the amendment introduced in the year 1928 be said to be a part of the law of procedure having retrospective effect. There was nothing contained in the amending Act of 1928 which gave the definition of holding a retrospective operation. In the above view of the case before us the appeal is dismissed with costs.


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