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Shyama Charan Ghose Vs. Fakir Chandra Dutt - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1927Cal546,101Ind.Cas.45
AppellantShyama Charan Ghose
RespondentFakir Chandra Dutt
Cases ReferredDwarka Nath Banerji v. Bash Behari Guha A.I.R.
Excerpt:
- .....upon which this appeal has been pressed before us. the way i look at the matter is this : the word kaimi does not import fixity of rent but only permanence of occupation. this is well settled upon a series of decisions, some of which have been noticed by my learned brother in his judgment. there is one decision of this court which has been cited before us on behalf of the appellants, as suggesting a different view, namely, the case of dwarka nath banerji v. bash behari guha a.i.r. 1923 cal. 365.7. in that case the word 'kaimi' appears to have been used with reference to what was found to be a tenure and it, therefore, imported permanency of the tenure; but the entry said nothing about the fixity or otherwise of the rent as it should have. in that case it was held that the tenant was.....
Judgment:

Graham, J.

1. These appeals, in which the defendant is the appellant, arise out of suits for enhancement of rent on the ground of increase in the price of staple foodcrops. The plaintiff claimed that the tenancies in question are occupancy holdings and liable as such to enhancement under the provisions of Section 30 of the Bengal Tenancy Act.

2. The main defence was that -the tenancies are holdings at fixed rate and are not liable to enhancement. The Court of first instance found in favour of the plaintiff and gave a decree. On appeal by the defendant that decision was affirmed by the learned Subordinate Judge, the appeals being dismissed and the cross-appeals of the plaintiff allowed with costs.

3. The defendant has now appealed to this Court and two points have been urged on his behalf. The first contention has reference to Sections 50, 102(b) and 115 of the Bengal Tenancy Act, and it is argued that the entry in the Record of Eights describing the tenancies as kaimi settled raiyats' is not an entry in compliance with the provisions of Section 102(b) of the Bengal Tenancy Act, and that that being so, the presumption arising under Section 50 of the Act is not taken away. I do not think there is any substance in this contention. One of the classes expressly specified in Section 102(b) for record is that of 'settled raiyat,' and in view of the fact that the proceeding portion of the section authorizes the Settlement Officer to include 'other particulars,' it cannot, in my opinion be held that the addition of the word 'kaimi' has the effect of making the entry a bad entry, so as to bar the operation of Section 50 of the Act.

4. It was next contended that, even assuming the entry to be a good entry, and that the appellant is not entitled to the benefit of the presumption under Section 50, the Courts below ought in the particular circumstances of this case, and on the basis of the evidence furnished by certain rent receipts to have held that the tenancies were at fixed rate, and are not enhanceable. It was also urged in this connexion that the expression kaimi settled raiyat imports fixity of rent as well as permanency and heritability. In my judgment, these contentions are not well founded. It is no doubt true, as was pointed out in the case of Nityananda Pal v. Nanda Kumar Chowdhuri [1911] 13 C.L.J. 415 that it does not follow because Section 50 has no application that the Court is precluded from drawing an appropriate inference from the facts proved by evidence on the record. It would appear, however, from ground 5 of the grounds of appeal that the rent receipts referred to above merely show payment of rent at an unvarying rate for more than 20 years and that in itself would not be sufficient to establish that the tenancies are held at fixed irate.

5. As regards the expression 'kaimi settled raiyat' the meaning of the word 'kaim' has been considered in numerous reported cases of this Court and the view almost uniformly adopted has been that it connotes nothing more than permanence of occupation and does not import fixity of sent : see Fazel Sheikh v. Keramuddi Sheikh [1902] 6 C.W.N. 916, Gayvatulla v. Girish Chandra Bhaumik [1908] 12 C.W.N. 175 and Mehr Ali v. Kalai Khalashi [1915] 19 C.W.N. 1129. We should not, I think, be justified in adopting any other interpretation. In the result the appeals fail and must be dismissed with costs.

Mukerji, J.

6. I entirely agree and wish to add a few words with regard to the second ground upon which this appeal has been pressed before us. The way I look at the matter is this : The word kaimi does not import fixity of rent but only permanence of occupation. This is well settled upon a series of decisions, some of which have been noticed by my learned brother in his judgment. There is one decision of this Court which has been cited before us on behalf of the appellants, as suggesting a different view, namely, the case of Dwarka Nath Banerji v. Bash Behari Guha A.I.R. 1923 Cal. 365.

7. In that case the word 'kaimi' appears to have been used with reference to what was found to be a tenure and it, therefore, imported permanency of the tenure; but the entry said nothing about the fixity or otherwise of the rent as it should have. In that case it was held that the tenant was entitled to prove uniform payment of rent for the statutory period and to rely upon the presumption under Section 50 of the Bengal Tenancy Act in support of their case that the tenure bore a fixed rental. It was held that the word 'thereafter' in Section 115, Bengal Tenancy Act, was not to be understood as suggesting that the payment could not be proved to show that at the time when the entry was made the presumption arose and that it was that presumption which led to the entry being made in that particular form. This is how I understand the judgment in that case. Section 115, Bengal Tenancy Act, does not, in my opinion, exclude such evidence of uniform payment of rent, but only precludes the application of the presumption to a tenancy after the particulars in respect of that tenancy have been finally recorded in the record of rights. The evidence is relevant, and may be used for explaining the entry in the record of rights or proving any fact apart from the presumption. Using the evidence for such purposes, the defendant gets very little in the present case; for apart from the aid of the statutory presumption the evidence of such payment does not go far enough to establish that the rent is fixed.


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