1. This is an appeal by the plaintiffs landlords and arises out of a suit for arrears of rent on utbandi basis. The defence of the tenants in substance was that some of the lands were patit or khicha or asha lands during the period in suit, that no rent was payable for patit lands and that the rate of rent for khieha lands was 8 annas and for asha lands 6 pies per bigha. The Court of first instance held that the plaintiffs had failed to establish that defendants were liable to pay rent for lands kept patit. The lower appellate Court agreed with the Munsiff.
2. A second appeal has been taken to this Court by the plaintiffs landlords and the main contention before me has been that even if it were held that some lands remained patit or khicha or asha during the years under claim the plaintiffs are yet entitled to full rate in respect of those lands inasmuch as the tenants have acquired a right of occupancy therein. It is to be noticed that this grounds on which the plaintiffs sought to recover full rates of rent does not find place in the plaint. It is true that the question was raised in the course of argument in the Court of first instance.
3. A preliminary objection has been taken by the learned advocate for the respondents to the hearing of this appeal and it is contended that as the tenancy is an utbandi tenancy the provisions of Section 153, Ben Ten. Act did not apply to such a case and that an appeal is not allowed by the proviso to Section 153 as it cannot be said that there is any decision on any question of amount of rent annually payable. It is not disputed that the word 'rent' under the Bengal Tenancy Act includes money as well as paddy rapt and although the rent may vary still the Court has determined what is the rate of rent which is payable or as to whether the rent is payable in respect of certain classes of land or not. I do not think there is any substance in the preliminary objection.
4. With regard to the contention of the appellants that the tenants are liable to pay full rent as they have acquired rights of occupancy, in my judgment, Section 180(a)(b), Ben. Ten. Act, affords a complete answer. It is not disputed that in this case no order has been made yet under Section 180(a) determining a uniform annual rental for any land of the tenancy and Section 180(b) provides that it is only when such au order is made that such lands in respect of which an order has been made shall cease to be held as utbandi lands with effect from the date from which new rent takes effect and the tenant shall hold them as occupancy raiyats from the date of the order. It is said on behalf of the respondents that it is open to the landlord to make an application under Section 180(a), Clause (2). I think the view taken by the lower appellate Court as to the effect of Section 180(a) is right and that the utbandi conditions of the tenures still continue irrespective of whether occupancy right has or has not been acquired in this tenancy. It also appears from the deposition of plaintiff's gomasta, his witness No. 2, that no rent is payable for petit lands in the mouza irrespective of the time such lands are in possession of the tenants. It also appears from the evidence of plaintiff's witness No. 1 that the tenants never paid rent for the petit land before the settlement operation. The learned advocate -for the respondents supports the judgment of the Court below also on the ground that there is a custom not to pay-rent for petit lands as has been deposed to by the plaintiff's own witnesses and that irrespective of the time of the occupation of the lands by the tenant. Section 108(a) and (b) have been added to the Bengal Tenancy Act by the Utbandi Amendment Act 10 of 1923. I do not think that the effect of the amendment is to interfere with any previous arrangement or custom that might have regulated the rights as between the landlord and the tenant. It is argued on behalf of the appellants that there would be considerably hardship if the landlord is not to get fair and equitable rent in respect of all lands although the defendants have acquired rights of occupancy in these utbandi lands having regard to the provisions of Section 24, Ben. Ten. Act. It is contended, on the other-hand, that ordinarily with regard to these Utbandi tenancies the rates are very high. In this connexion reference is made by the learned advocate for the respondents to a case in 3 W.R. Act 10 Rule 159 to show that in the district from which this case comes utbandi tenancies are granted at pretty high rates. I am not, however, concerned with the question as to whether the construction that has been put by the Courts below on Section 180(b) operates harshly on the plaintiffs landlords. The rights of the parties have to be regulated by the law although it may operate harshly on one party or another. I think the Courts below have taken a right view. The appeal accordingly fails and must be dismissed with costs.