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Hafizaddi and ors. Vs. Prosanna Kumar Kapali - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.341
AppellantHafizaddi and ors.
RespondentProsanna Kumar Kapali
Cases ReferredAmbica Charan Ghakravarti v. Joy Charan Ghosh
Excerpt:
bengal tenancy act (viii b c of 1885), section 104 to f and h - settlement of rent by revenue officer, haw altered--additional rent for excess area, whether recoverable by suit. - .....was brought under section 104h to make any alteration in the entry of the rent as settled. now the rent settled was the rent provided in the lease, rs. 120, although the land was shown as more than 10 kanis. the courts below have dismissed the suit on the authority of the case of prosonna kumar adhikari v. rachim-ud-din howldar 15 ind. cas. 327 : 17 c.w.n. 153. the said case fully supports the decision of the courts below. it is contended that the said case was wrongly decided and in any case distinguishable. the distinction is that there was a suit under section 104h in that case whereas there was none in this case. we do not think that distinction material as the only way in which the record of rights made under section 104a to f can be altered is by a suit under section 104h. as.....
Judgment:

1. Under the terms of a kabuliyat the defendant was bound to pay additional rent for any area found on measurement to be in excess of the 10 kanis of land leased. There were settlement proceedings under Chapter X, Part II, Section 104 of the Bengal Tenancy Act and no suit was brought under Section 104H to make any alteration in the entry of the rent as settled. Now the rent settled was the rent provided in the lease, Rs. 120, although the land was shown as more than 10 kanis. The Courts below have dismissed the suit on the authority of the case of Prosonna Kumar Adhikari v. Rachim-ud-Din Howldar 15 Ind. Cas. 327 : 17 C.W.N. 153. The said case fully supports the decision of the Courts below. It is contended that the said case was wrongly decided and in any case distinguishable. The distinction is that there was a suit under Section 104H in that case whereas there was none in this case. We do not think that distinction material as the only way in which the Record of Rights made under Section 104A to F can be altered is by a suit under Section 104H. As regards the correctness of the decision also the arguments do not press us to dissent from that case. It is contended that under Section 104A (a) the Revenue officer may enhance or reduce but he has to go by the principles laid down in Sections 6, 9, 27 to 36, 38, 39, 43, 50 to 52, 180 and 191 and these Sections do not contemplate interference with the terms of any contract. We think that whatever might be the limits within which alteration of rent etc., might be made under those sections, the Revenue officer is not debarred from considering the terms of any subsisting contract between the parties. Under Section 104A(a) he may give effect to agreements made before him if he considers them fair and there is nothing in Section 104A which debars him from considering prior contracts. He is to settle fair rent on all materials available and Section 104J gives the record a finality which is not to be disturbed. See also Ambica Charan Ghakravarti v. Joy Charan Ghosh 4 Ind. Cas. 470 : 13 C.W.N. 210. In this view of the case we dismiss the appeal with costs.


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