1. These 31 appeals arise out of suits for rent.
2. The plaintiff-landlord sued 62 tenants of village Andulia on the basis of a measurement and a rent-roll prepared in accordance thereunder in the year 1891. His case was that rents had been paid in accordance with the rent-roll from the years 1891 to 1906. When in the latter year he demanded agreements for the payments of enhanced rents, the tenants declined to make any payments whatever, and he was, therefore, compelled to sue.
3. The defence was that in 1891 the tenants were raiyats with rights of occupancy, that the rentals entered in the rent-roll represented illegal and excessive enhancements contravening the provisions of Section 29 of the Bengal Tenancy Act, that they had never consented to the rent-roll, and had never paid the rents entered therein.
4. In the Court of first instance the 62 suits were tried in 3 groups or batches and were all decreed. In 31 cases the appeals to the District Judge followed, in 28 of these cases the appeals were allowed and decrees given at the rents admitted by the tenants. In three cases the District Judge found that the tenants had signed the rent-roll and, therefore, allowed an enhancement of 2 annas in the rupee over the admitted rents. Hence the 31 appeals to this Court, and 3 cross-appeals by the tenants.
5. The plaintiff sought to. avoid the operation of Section 29 of the Bengal Tenancy Act by asserting that, on his measurement (which followed upon his purchase of the mahal), the tenants of the village relinquished or abandoned their old holdings, and that the rent-roll of 1298 represented new settlements. On the evidence before him the District Judge has very properly negatived this case and has held that the old tenancies continued.
6. As to payment of rent from and after the year 1298 the judgment in appeal is not very happily worded, but in effect the District Judge disbelieves the plaintiff's collection papers, is of opinion that any excess collections entered therein may be explained by reference to payments made on account of what are known as utbandi lands and holds that the plaintiff has failed to show that he realised rents in accordance with the rent-roll of 1298, or indeed at any rates exceeding those paid prior to that year. It was suggested in argument that the explanation offered by the District Judge of the entries in the collection papers is not suggested in the written statements and is not based on evidence. The written statements are no doubt confined to the several holdings in respect of which the suits are brought, but extracts from the evidence which have been placed before us show that the contention that the District Judge's explanation of the entries in the collection papers is not suggested by the evidence, is not wellfounded.
7. But even if the criticisms on the Judge's findings on the question of realization were well-founded this would not advance the appellant's case. It is now settled law that proviso (1) to Section 29 of the Bengal Tenancy Act does not control Clause (6) of the section, and that continuous realisation of rent at an illegal rate is of no avail to the landlord when he seeks the assistance of the Court.
8. Lastly, it is contended on behalf of the appellant that there is no finding that the tenant defendants bad in ]298 acquired the status of occupancy raiyats and further that there is no finding as to the rents then paid.
9. But from the issues and from the manner in which the cases were dealt with in the Courts below, and also from the extracts from the plaintiff's evidence that have been read to us, it is clear that on those points there was no controversy in the Courts below. It was never disputed that in 1298 the tenants were occupancy raiyats and that if the old tenancies continued, the rents entered in the rent-roll of that year were in fact enhanced rents exceeding the rents previously payable by more than 2 annas in the rupee.
10. We may add that the Judge's finding is in effect that the rents admitted by the tenants were the rents previously payable.
11. In the 3 cross-appeals it is clear that the Judge has fallen into error. In those cases he finds that by signing the rent-roll the tenants entered into a contract for the payment of enhanced rents. But in the first place, the contract is not registered and in the next place, as it provides for an enhancement exceeding 2 annas in the rupee it is wholly void [Kristodhone Ghose v. Brojo Gobindo Roy 24 C. 895 : 1 W.N. 442].
12. In one of these three cases it next appears that the pre-existing holding had been divided between two brothers. It is suggested that this division being a contract between the landlord and the tenant has the effect of creating new tenancies and, therefore, of taking away the pre existing occupancy rights. Certainly if this was not the intention of the parties, the division could not have the effect suggested. [Mullwh Chand Das v. Satish Chandra Das 3 Ind. Cas. 306 : 11 C.L.J. 56 : 14 C.W.N. 335 and W.M. Grant v. Ram Rekha Bhaghat 6 Ind. Cas. 501 : 14 C.T.J. 110.] No question as to any such intention was raised in either of the Courts below.
13. Further the provisions of Section 178 (1) (6) of the Bengal Tenancy Act would seem to be a sufficient answer to this contention.
14. In the result the appeals are dismissed with costs and the 3 cross-appeals are decreed with costs in all Courts.