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Jitendra Nath Roy Vs. Abejannessa Bibi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1207,97Ind.Cas.753
AppellantJitendra Nath Roy
RespondentAbejannessa Bibi and ors.
Excerpt:
bengal tenancy act (viii of 1885), section 50 (2) - presumption of fixity of rent--agreement to pay enhanced rent in future, whether constitutes change of rent--presumption, whether rebutted. - .....j.1. these five appeals arise out of live suits for enhancement of rent under section 30 of the bengal tenancy act on the ground of rise in the prices of the staple food crops and also for increase of rent for increase in area under section 52 of the bengal tenancy act.2. with regard to increased rent for increased area both the courts below have found that there has been no increase in area. therefore the plaintiff is not entitled to any increase of rent under this section.3. with regard to enhancement of rent under section 30 of the bengal tenancy act on the ground of rise in the prices of the staple food crops both the courts below have held that the tenants hold at a fixed rate of rent and, therefore, their rents are not liable to enhancement under section 30. in the court below.....
Judgment:

Cuming, J.

1. These five appeals arise out of live suits for enhancement of rent under Section 30 of the Bengal Tenancy Act on the ground of rise in the prices of the staple food crops and also for increase of rent for increase in area under Section 52 of the Bengal Tenancy Act.

2. With regard to increased rent for increased area both the Courts below have found that there has been no increase in area. Therefore the plaintiff is not entitled to any increase of rent under this section.

3. With regard to enhancement of rent under Section 30 of the Bengal Tenancy Act on the ground of rise in the prices of the staple food crops both the Courts below have held that the tenants hold at a fixed rate of rent and, therefore, their rents are not liable to enhancement under Section 30. In the Court below the tenants relied upon the presumption under Section 50, Clause (1) of the Bengal Tenancy Act and the case of the plaintiff who is now the appellant was that this presumption had been rebutted by certain kabuliyats. Both the Courts have found that these kabuliyats do not rebut the presumption under Section 50, Clause (2) of the Bengal Tenancy Act and the plaintiff's suits have been dismissed.

4. The plaintiff has appealed to this Court and he argued that these kabuliyats have rebutted the presumption under Section 50, Clause (2), because they show a change in the rate of rent. The learned Vakil for the appellant has put before us one of these kabuliyats which presumably is in the same terms as the other four. At any rate he has not asked us to go through the other kabuliyats: In this kabuliyat the rent was given as Rs. 4 and there is the following clause:--'You will be entitled to measure the land at any time and we shall be present with the amin at the time of measurement and shall cause the same to be measured without any concealment according to different classes of lands after which we shall take settlement of the lands found according to the following rates, namely, each pukhi homestead land (bastu) at Rs 4-8, straw land, Rs. 3-8, paddy land, Rs. 2.'

5. The learned Vakil argues first of all that by agreeing to these terms the tenant has agreed to an enhancement to rent and that the enhancement must be held to take effect at the time of the execution of the kabuliyat.

6. There are two flaws in this argument. The first flaw is that, there is nothing to show that these rates are enhancements at all, because it is not stated in the kabuliyat at what rate the tenant was then paying rent. No details have been given in the kabuliyat as to the classes of rent he is holding, whether it is all cultivable lands or straw lands or bastu lands. All that is given is the figure of Rs. 4 as rent for some two pakhis odd land. Therefore it is impossible to say that the rates set forth here for the different classes of land are enhancements of what is being paid at present. The learned Vakil argues that the area of the present holding is some 2/3/4 pakhis and that if it is taken for the sake of argument that it is all paddy land, then he is paying rent at the rate of less than 2 per pakhi and that, therefore, it must be an enhancement of rent. This argument leaves out the possibility that besides bastu and straw lands there may be other lands on which no rent would be assessed. Therefore, this argument fails.

7. Even if these rates were an enhancement on the rates that he was then paying it would not constitute such an enhancement as would rebut the presumption under Section 50, Clause (2) of the Bengal Tenancy Act because it would not show a change in the rate of rent, It would only show agreement to pay rent at an enhanced rate of rent at some future time. An agreement to pay enhanced rent at some future time does not constitute a change in the rate of rent under Section 50. Therefore, we cannot say that the rate of rent was changed at the time of the execution of kabuliyat.

8. The learned Vakil has argued that at any rate he is entitled to the raies as mentioned in the kabuliyat; possibly he may be but not in the present suit which he has based not on his contract in the kabuliyat but on the rise in the prices of the staple food crops under Section 30 of the Bengal Tenancy Act.

9. The appeals, therefore, fail and are dismissed with costs. Hearing-fee, one gold mohur in each appeal.

B.B. Ghose, J.

10. I agree.


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