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Biseshwar Ray Chowdhury Vs. Judhisthir Nath and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.437
AppellantBiseshwar Ray Chowdhury
RespondentJudhisthir Nath and ors.
Excerpt:
cause of action - arrears of rent--resettlement, arrears after--cause of action, whether same--bengal tenancy act (viii of 1885), sections 104h, 111 a--record of rights, preparation of, finality of. - .....due up to the year 1316 formed part of the same cause of action as that sued for in the other suit for rent, and that, therefore, under the provisions of rule 2, order ii, of the first schedule of the code of civil procedure, the plaintiff must be taken to have abandoned his right to sue for that portion of the rent. he further held that there were, in fact, two different tenancies in respect of the land and that the plaintiff was only entitled to recover from the defendant no. 1 the proportionate amount of the rent.5. against that decision the plaintiff has appealed to this court.6. i have no doubt that the learned subordinate judge is wrong on both points. what is called the re-settlement, that is, the new contract of lease, contemplates that there was a new obligation and a new.....
Judgment:

Fletcher, J.

1. This is an appeal by the plaintiff against the judgment and decree of the Subordinate Judge, first Court, Baekerganj, varying the decree of the Munsif.

2. The suit was brought by the plaintiff to recover certain arrears of rent in respect of a piece of land situate in the limits of a Government khas mahal. The plaintiff obtained from the Government what is known as a settlement of a portion of the land within the khas mahal. That settlement, or lease, expired in the year 1313; and then, in accordance with the usual practice, apparently the Government proceeded to re-settle the property with the tenants, and when that was done they granted a fresh settlement to the plaintiff. The settlement to the defendants, who are the tenants, was for an increased rent, and the tenants were entered on the Record of Rights as tenants of one holding. Now the plaintiff in 1316 instituted against the defendants a suit to recover arrears of rent down to 1313. That suit was decreed; then the present suit was instituted in 1318 to recover rents from the date when the re-settlement with the plaintiff from the Government took place, namely, 1314, down to the date of the suit.

3. The Munsif decreed the suit in full.

4. On appeal to the learned Subordinate Judge, he varied the decree of the Munsif in two ways. First of all, he held that the rent that had accrued due up to the year 1316 formed part of the same cause of action as that sued for in the other suit for rent, and that, therefore, under the provisions of Rule 2, Order II, of the first Schedule of the Code of Civil Procedure, the plaintiff must be taken to have abandoned his right to sue for that portion of the rent. He further held that there were, in fact, two different tenancies in respect of the land and that the plaintiff was only entitled to recover from the defendant No. 1 the proportionate amount of the rent.

5. Against that decision the plaintiff has appealed to this Court.

6. I have no doubt that the learned Subordinate Judge is wrong on both points. What is called the re-settlement, that is, the new contract of lease, contemplates that there was a new obligation and a new contract to pay new and increased rent. That, clearly, is not the same cause of action as the rent which became due under the original contract for letting which expired in 1313. I am unable to agree with the view taken by the learned Subordinate Judge with regard to that.

7. Then, on the second point, the appellant before us has urged, and I think rightly urged, that it was not open to the Subordinate Judge to go behind the Record of Rights prepared in this case. That Record of Rights was prepared during the settlement of the Government revenue; and, under the provisions of Section 104H and under Section 111A of the Bengal Tenancy Act, subject to the right of the tenant to bring a suit, as mentioned in Section 104H (3), the Record of Rights is conclusive. I think the learned Subordinate Judge was wrong when he went behind the Record-of-Rights to Ascertain what, in fact, was the true nature of the tenancy between the parties. In my view the variation made by the learned Subordinate Judge in the decree of the Munsif is wrong, and I think we ought to allow this appeal and restore the decree of the Munsif with costs in all the Courts.

Mullick, J.

8. I agree.


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