1. This is an appeal against a decree of the Subordinate Judge of Nadia modifying a decree of the Munsif of Ranaghat.
2. The pltfs' case was that the defts were Utbandi tenants in respect of 9 bighas odd of land which had been let at a rate of Rs. 1/4/-per bigha. The defts' case was first that they had acquired a right of occupancy, and secondly that the rental of the lands was Rs. 4/-. The trial Ct found that the tenants had not acquired the right of occupancy; that the receipts produced by them to show the rental as being Rs. 4/- were not genuine or not believable and finally that the rate of Rs. 1/4/-per annum (sic) and consequently the rate claimed by the pltfs was not unfair or inequitable. It decreed the pltfs' suit at the rate claimed. The learned Subordinate Judge relying on the case of 'Nafar Chandra v. Jatindra Nath : AIR1929Cal614 held that the trial Ct should not have allowed evidence to be given of the prevailing rate of rent & that if the pltfs wanted the rent to be settled at a fair & equitable rate under section 24 of the Bengal Tenancy Act they must file a separate suit for the purpose. Therefore in the circumstances there could only be a decree at the agreed rate.
3. It is easy to see that neither of the Cts have properly understood the provisions of Section 180 A or 180 B, Bengal Tenancy Act & that the lower appellate Ct has equally misunderstood the facts & the effect of the case relied on by it. Section 180 makes it quite clear that a, tenant holding tinder the system of Utbandi who has not acquired a right of occupancy is 'liable to pay such rent for his holding as may be agreed on between him and his landlord'. No question of fair & equitable rate arises.
4. Section 180 A provides the procedure for the landlord or the tenant to have a rate of rent determined under certain conditions and Section 180 B provides that on that event happening the tenant will have a right of occupancy.
5. In the case cited, the tenants had already acquired a right of occupancy & one of the contentions was that the only way the rent payable by such a tenant could be settled was by the procedure laid down in Section 180 A. It was held that this view was erroneous & that there was nothing in Section 180 A to affect the application of Section 24, Bengal Tenancy Act, to the effect that an occupancy raiyat is liable to pay rent at a fair & equitable rate & thus to affect the right of the landlord in the case of Utbandi tenants who had acquired a right of occupancy to sue for assessment of fair & equitable rent. The case further decided that in the particular circumstances of the pltfs suit such an assessment could not be made. In fact, the pltf had only a share in the landlord's interest.
6. Clearly, the case has no bearing on the facts in the present case, where the finding is that the tenants have not yet acquired a right of occupancy. The trial Ct was wrong in determining the rent claimed by the pltfs as being fair & equitable & in determining that on that ground the pltfs were entitled to a decree for rent at that rate. The only point that can be in issue in this case as to the rate of rent is what was the rent agreed upon. The evidence on the point of the rent agreed upon is negligible on either side. It has been found that the defts' evidence is worthless. On the other hand, the pltfs could only show that the usual rate at which such lands were let was Rs. 1/4/- & ask the Ct to deduce that therefore in the present case the agreed rent was at that same rate. The pltfs are purchasers from a purchaser at a revenue sale. They called as a witness the proprietor whose interest was sold at a revenue sale, & his evidence has been referred to before me, which shows that it amounted to stating that his officer had swindled him and supplied him with no papers. He was really called to meet the defts' case in producing the rent receipts which were supposed to have been given by the officer referred to. The lower appellate Ct was wrong in saying that the trial Ct was in error in allowing evidence as to the prevailing rate in so far as that evidence is some faint circumstantial evidence in support of the pltfs' contention that the prevailing rate must have been the agreed rate. In so far as the trial Ct had dwelt with the matter as one of determining what was fair & equitable rate for Utbandi tenants, of course, as I have already stated, it was in error but it does not appear that the learned Subordinate Judge quite understood the nature of that error.
7. The result is that neither Ct has decided the real question in the present case, namely, what was the agreed rate between the tenant & the landlord. Admittedly, the only evidence on the point is evidence that the usual rate at which these lands were let in the neighbourhood was Rs. 1/4/-. In the circumstances, I do not think this is sufficient to establish the pltfs case that the letting in this case was actually made at that particular rate, Therefore, the learned Subordinate Judge's decision that a decree can only be given at the amount admitted by the defts appears to be correct though based on unsound reasoning.
8. The result is that the present appeal is dismissed. In view of the nature of my finding, each side will bear its own costs in this appeal.