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Kali Sankar Debya Vs. Kaloo Mollah and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.493
AppellantKali Sankar Debya
RespondentKaloo Mollah and ors.
Cases ReferredPirthi Chand Lal Chowdhuri v. Sheikh Basarat Ali
Excerpt:
bengal tenancy act (viii of 1885), sections 38 and 105, clause (4) - settling fair and equitable rent--second appeal--presumption--existing rent--non-payment of rent for a generation. - .....officer fixed what he found to be a fair and equitable rent in each case. on appeal, the special judge of pabna has fixed the rents at somewhat lower figures.2. it is objected by the defendants-respondents, that no second appeal lies to this court, and, in our opinion, that contention is sound. some attempt was made to argue on behalf of the plaintiff that the courts below had not confined themselves to the fixing of a fair and equitable rent under section 105 but had gone into matters which would properly fall under section 106, and the case of pirthi chand lal chowdhuri v. sheikh basarat ali 3 ind. cas. 449 : 13 c.w.n. 1140 : 37 c. 30 : 10 c.l.j. 343 was cited. but, as a matter of fact, the courts have not gone outside the provisions of section 105 nor does the decree of the.....
Judgment:

1. This is an appeal by the plaintiff in a suit brought by her under Section 105 of the Bengal Tenancy Act against all her tenants (defendants Nos. 1 to 75) for settlement of fair and equitable rents. She prayed that the rent of the several tenants as recorded in their respective khatians might be enhanced on several grounds. The Assistant Settlement Officer fixed what he found to be a fair and equitable rent in each case. On appeal, the Special Judge of Pabna has fixed the rents at somewhat lower figures.

2. It is objected by the defendants-respondents, that no second appeal lies to this Court, and, in our opinion, that contention is sound. Some attempt was made to argue on behalf of the plaintiff that the Courts below had not confined themselves to the fixing of a fair and equitable rent under Section 105 but had gone into matters which would properly fall under Section 106, and the case of Pirthi Chand Lal Chowdhuri v. Sheikh Basarat Ali 3 Ind. Cas. 449 : 13 C.W.N. 1140 : 37 C. 30 : 10 C.L.J. 343 was cited. But, as a matter of fact, the Courts have not gone outside the provisions of Section 105 nor does the decree of the lower Appellate Court do more than fix the several rents. We think, therefore, that no second appeal lies.

3. Anticipating this decision the plaintiff, at the time of filing the appeal, filed also an application for revision under Section 115 of the Civil Procedure Code, and now asks us to interfere in our revisional powers. We are unable to see that any good ground has been made out for such a course. The chief objection appears to be that the Special Judge has disregarded the provisions of Section 105(4); that he has not given the necessary presumptive value to the existing rents; and that he has not had due regard to the rules laid down in the Act, (i.e., in Section 38), for the guidance of the Civil Court in reducing rents. The short answer to this is that the Special Judge has found as a fact (a finding which we are bound to accept) that no rents have been paid in respect of these lands for over a generation and that there are consequently no existing rents. There has, therefore, been no increase or reduction of rent but merely the fixing of a fair and equitable rent. That was a matter with which the lower Appellate Court was fully competent to deal and we cannot see that it has exercised its jurisdiction illegally, or with any material irregularity.

4. The appeal is accordingly dismissed with costs. The application is rejected, but in respect of it we make no separate order as to costs.


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