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Asir Mahomed Sheikh and ors. Vs. Raja Probhat Chandra Barua - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.1
AppellantAsir Mahomed Sheikh and ors.
RespondentRaja Probhat Chandra Barua
Excerpt:
rent, enhancement of, suit for - landlord and tenant procedure act (b.c. viii of 1869), sections 14, 18, scope of--'prevailing-rate', how to ascertain. - .....viii of 1869 b.c. the only ground upon which enhancement has been allowed is that the defendants paid rent below the prevailing rate of rent paid by tenants in the places adjacent. the defendants have appealed to this court, and several questions have been raised in these appeals.2. the main contention, and that which applies to all the appeals, is that the decision of the courts below as to the prevailing rate is incorrect.3. the holdings of the defendants are situated in mouzah bidyapara. some of the tenants of bidyapara pay rent at a higher rate than that paid by the defendants, but they do not form a majority of the tenants of the mouzah. the courts below, however, have taken the rate of rent in the neighbouring mouzahs, along with the rate paid by the minority of the tenants of.....
Judgment:

1. These appeals arise out of suits, for enhancement of rent under Section 18 of Act VIII of 1869 B.C. The only ground upon which enhancement has been allowed is that the defendants paid rent below the prevailing rate of rent paid by tenants in the places adjacent. The defendants have appealed to this Court, and several questions have been raised in these appeals.

2. The main contention, and that which applies to all the appeals, is that the decision of the Courts below as to the prevailing rate is incorrect.

3. The holdings of the defendants are situated in Mouzah Bidyapara. Some of the tenants of Bidyapara pay rent at a higher rate than that paid by the defendants, but they do not form a majority of the tenants of the mouzah. The Courts below, however, have taken the rate of rent in the neighbouring mouzahs, along with the rate paid by the minority of the tenants of Mouzah Bidyapara itself, to be the prevailing rate.

4. It has been contended that neighbouring mouzahs are not 'places adjacent' within the meaning of Section 18 of Act VIII of 1869. It is unnecessary, however, to discuss the question, having regard to the view we take of the prevailing rate' in the present case. It appears that the plaintiff, who is the proprietor of Mouzah Bidyapara and the neighbouring mouzahs, held a survey of all these mouzahs and demanded enhancement of rents from the tenants.

5. The tenants of the neighboring mouzahs and some of the tenants of Mouzah Bidyapara agreed to the enhancement, but the defendants in these cases refused to do so. They were accordingly served with notices of enhancement under Section 14 of Act VIII of 1869. These notices were served so far back as 1907, and the present suits were instituted in 1910. Now the enhanced rates paid by the tenants of the neighbouring mcuzahs and by some of the tenants of Bidyapara Mouzah came into existence since the defendants were called upon to pay the enhanced rents. It is true that plaintiff has succeeded in realising rents at the enhanced rates from the other tenants, but that was shortly before the notices of enhancement were served upon the defendants, and the plaintiff cannot by merely delaying the institution of the suits rely upon the rate at which he had succeeded in realising rents since the commencement of the disputes as to rates in the locality. We do not think the prevailing rate mentioned in Section 18 of Act VIII of 1869 contemplates a rate brought into existence, so to say, by the landlord pending disputes with the tenants regarding enhancement of rent.

6. We are accordingly of opinion that the Courts below are in error in relying upon the rates paid by the minority of the tenants of Bidyapara and the tenants of the neighbouring mouzahs under the circumstances stated above as the 'prevailing rate' and that the plaintiff has failed to prove the prevailing rate according to law.

7. In this view it is unnecessary to consider the other questions raised on behalf of the appellants.

8. In the result, the claim for enhancement is disallowed the plaintiff will get a decree for rent at the rates admitted by the defendants in each case with interest at the legal rate. Under the circumstances we direct each party to bear his own costs in all the Courts.


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