1. This appeal has arisen out of a suit for rent. The plaintiffs landlords are the appellants in the appeal. In order to appreciate the contentions that have been urged in the case, it is necessary to set out the pleadings somewhat in detail.
2. The plaintiffs instituted the suit for recovery of rent on the allegation that they were 12 annas 16 gandas cosharer landlords and that the defendants were holding certain lands under them in utbandi system. In the plaint, certain rates were mentioned as being the rates of rent payable by utbandi tenants in respect of different kinds of land and a decree for rent was prayed for on the footing that separate collections used to be made on behalf of the plaintiffs from those defendants. The main defence of the defendants was to the effect that some of the lands in suit were patit, khicha and a3ha lands, that no rent was payable for patit lands, that the rate for the khicha lands was 8 annas per bigha and that the rate for the asha lands was 6 pies per bigha. The trial Court held that the evidence that was produced on behalf of the plaintiffs for the purpose of establishing the rates at which they claimed rent in respect of the lands in suit was not satisfactory and, being of opinion that the defendants had succeeded in establishing that no rent was payable for the patit lands and that the rates for the khicha and the asha lands were what were stated in the written statement, the learned Munsiff gave the plaintiffs a decree on the defendants' admission. This decree was upheld on appeal by the learned Subordinate Judge and, on a second appeal being preferred to this Court, my learned brother Mitter, J. has affirmed that decision. The plaintiffs have thereupon preferred the present appeal under the Letters Patent.
3. Of the two grounds that have been urged in support of the appeal, one is to the effect that the plaintiffs are entitled to a decree for fair and equitable rent as against the defendants, inasmuch as the defendants by holding the lands for a continuous period of twelve years have acquired a right of occupancy and that, therefore, under the provisions of Section 24, Ben. Ten. Act, they are liable to pay a fair and equitable rent. This contention has been dealt with by my learned brother Mitter, J. as well as by the Courts below and has been held as being answered by the provisions of Sections 180-A and 180-B, Ban. Ten. Act. It appears that the suit was not based upon an allegation to the effect that the plaintiffs were entitled to get fair and equitable rent from the defendants inasmuch as they were no longer utbandi tenants but had acquired a right of occupancy. Such a contention did not appear in the pleadings and it was only at the time of the argument in the trial Court that it was put forward. The Courts below, however, have dealt with this matter and, inasmuch as it has been argued before us, I may as well express my opinion upon it.
4. What is contended is that Section 180, Ben. Ten. Act states--and here I read only that part of the section which is relevant:
notwithstanding anything in this Act a raiyat who in any pact of the country where the custom of utbandi prevails holds land ordinarily let under that custom and for the time being let under that custom shall not acquire a right of occupancy until he has held the land in question for 12 continuous years and, until he acquires a right of occupancy in the land, he shall be liable to pay such rent for his holding as may be agreed on between him and his landlord.
5. It is contended that the 'section provides that an utbandi raiyat shall not acquire a right of occupancy until he has held the land in question for twelve continuous year3 and that it further provides that, until he acquires a right of occupancy in the land he shall be liable to pay such rent for his holding as may be agreed on between him and hi3 landlords ; and it is said that from this it follows, in the absence of any other provision in the Act, that, when a right of occupancy is acquired by a raiyat who had been an utbandi tenant, his status as well as all the other incidents of the tenancy are to be governed by those provisions of the Act which deal with occupancy raiyats. This in substance is the contention that is urged on behalf of the appellants and, in support of this, what is stated is that, prior to the amendment introduced by Act 10 (B.C.) of 1923 which for the first time inserted Sections 180-A to 180-0 in the Tenancy Act, there was no provision in the Act which could regulate the rent etc. in respect of utbandi raiyats who had acquired a right of occupancy. Section 180, it is said, limits the liability to pay the agreed rent until such time as the right of occupancy is acquired by an Utbandi raiyat.
6. Now, the Courts below appear to have been of the view that, inasmuch as Section 180-A provides for an application to be made for the fixing of uniform annual money rent in respect of utbandi lands either by the landlord or by the raiyat and inasmuch as Section 180-B says that whenever an order under Section 180-A is passed determining a uniform annual money rent for any lands such lands shall cease to be held as Utbandi lands with effect from the date from which the new rent takes effect and the tenant shall hold them as an occupancy raiyat from the date of the order, the effect of these provisions is to lay down that, although under Section 180 a right of occupancy may be acquired by an utbandi raiyat he is not liable to pay a uniform money rent or a fair and equitable rent until proceedings have been taken in accordance with the provisions of Sections 180-A and 180-B of the Act. I am of opinion that this view is not sustainable. In my opinion, there is nothing in Section 180-A or 180-B which takes away the rights which are conferred by Section 180 upon an utbandi raiyat who has acquired aright of occupancy and, even if resort is not made to the provisions of Sections 180-A and 180-B for the purpose of fixing a uniform annual money rent in respect of utbandi lands, the general liability of an occupancy raiyat to pay a fair and equitable rent for the lands that he holds will accrue to a person who was in the position of an utbandi raiyat and has acquired a right of occupancy under the provisions of Section 180. This view, however, would not help the appellants in the present case, inasmuch as the suit that they instituted was not one for recovery of rent in accordance with the provisions of Section 24, Ben. Ten. Act but a suit for recovery of rent at rates agreed upon by all utbandi tenants. To have a decree for rent at fair and equitable rates the plaintiffs will have to ask first of all for assessment of rent in a properly constituted suit with their cosharers as parties. In view of the nature, of the claim that they had put forward, the question whether they are entitled to recover a fair and equitable rent is a question which cannot arise in the present case. Although, therefore, I am not prepared to agree with the view that the Courts below have taken as regards Sections 180-A and 180-B, Ben. Ten. Act, I am clearly of opinion that the decree that has been passed in the present case is correct.
7. Another argument has been put forward to the effect that, in the judgment of my learned brother Mitter, J. there is a passage indicating that the plaintiffs are not entitled to get any rent on account of the patit lands as it bas been established that by custom such rent is not payable. It has been argued before us that there is no evidence of a custom properly so called and that the question as to whether there has been a custom to the above effect is a question which was not gone into in any of the Courts below. What appears, however, is that my learned brother Mitter, J. intended to mean that there was evidence to that effect and that it was proved by the plaintiffs' evidence that no rent was, in point of fact realized on account of the patit lands. I am of opinion, therefore that there is no substance in this contention.
8. The result is that the appeal fails and is dismissed with costs.
9. I agree.