No. 15 of 1915
1. This is an appeal preferred by the defendants Nos. 1, 3 and 7 against the decision of the learned Subordinate Judge of Chittagong, dated the 26th August 1914, affirming the decision of the Munsif of the same place. The suit was brought by the plaintiff for enhancement of rent and for recovery of rent at the enhanced rate. The learned Munsif enhanced the rent from Rs. 411-8 0 per annum to Rs. 792. On appeal to the lower Appellate Court, the learned Subordinate Judge affirmed the decision of the Munsif. Against that decision, the present appellants have preferred this appeal to this Court.
2. The tenure in respect of which the plaintiff sought to enhance the rent is governed by a document in writing or rather two documents in writing, namely, the patta executed by the landlord in favour of the tenure-holder and the kabuliyat executed by the tenure-holder in favour of the landlord. The first point that is raised in this appeal is that these documents did not in themselves create the tenure but that the tenure was an old tenure which was merely confirmed or evidenced by these documents and that consequently the presumption contained in Section 50, Sub-section (2), of the Bengal Tenancy Act would apply to this case and the rent having been paid since 1848 when the lease was granted at an uniform rate, unless it is shown that the tenure had been created since the date of the Permanent Settlement, the rent would not be liable to enhancement. It is admitted that on the face of the documents, there is nothing to show that these documents are merely confirmatory of a pre-existing tenure that was held by the person in whose favour the patta was granted. The learned Judge in the Court below, considering the evidence that had been adduced to show whether the tenure was an old preexisting tenure, came to the conclusion that the evidence did not establish that fact. We are bound by that finding in this appeal. The question, therefore, resolves itself to this:-- Does the lease in this case show that the rent is not liable to enhancement?' The learned Judge also came to the conclusion that the lease did not confer a permanent interest on the tenure-holder. With that view, as at present advised, I am not disposed to agree, because the use of the words 'taluka patta' would prima facie show that the interest granted to the lessee was intended to be a permanent one. But in this country, the grant of a permanent lease does not mean that the rent is also fixed in perpetuity. The decisions in this Court which have come down from the old Sudder Diwani Court show that the rule has always been in this country that generally when the lease is a permanent one, the rent is liable to enhancement, unless the landlord has precluded himself by a contract or is by law precluded from claiming an enhancement. That proposition is well illustrated in the decision of the case cited by Sir. Rash Bihary Ghose in the course of his argument, namely, the case of Taruck Chunder Nundee v. Modhoo Soodun Nundee 5 W.R. Act. X Rulings, 80. Many other decisions have been cited where a similar view has been taken. The decisions in the cases of Gayratulla Sardar v Girish Chandra Bhaumik 12 C.W.N. 175 and Meher Ali v. Kalai Khalashi 29 Ind. Cas. 461 : 19 C.W.N. 1129 are to the same effect. It may, therefore, he taken--and it has not been denied in the argument of Mr. Mohendra Nath Roy in reply to Sir Rash Behary Ghose's address--that this case must be determined on the terms' of the contract that was entered into between the parties and that unless the landlord is precluded by the terms of that contract from claiming an enhancement, the rent is liable to be enhanced. Now, the terms of the contract, so far as material, are as follows:-- 'You,' that is, the lessee, 'having applied of your own accord for a taluha patta, according to your own application, I having taken a taluka kabuliyat of the said total lands grant you this patta and thereby appoint you talukdar The total rent of the said mouzahs is a consolidated sum of Company's Rs. 420.' The lease then proceeds as follows after some words that are not material to state:--'if the Huzur (the Government) imposes any new assessment' (the words 'any new assessment' occurring in the translation which we have got which Sir Rash Behary Ghose says mean any new imposition, the other side stating that those words mean any new sum) 'that you shall give without any objection;' and the patta ends with these words: 'If you do not pay according to the kists given below, the arrear rents would be realized in accordance with the Regulations V, VII and VIII and other laws that may come into force, you shall not take any objection to the realization of the rent.' The main stress of the argument in this case has been on the words contained in the covenant, namely, that if the Huzur (Government) should impose any new sum the lessee should pay that without any objection, The land let out by these documents consists of two portions; first, which is called the taraf, that is, the land of which the Government revenue is permanently assessed, and, secondly, the noabad land, that is, the land which is outside the Permanent Settlement in Bengal. It is argued that the covenant in this lease has reference to the small portion of noabad land and that, it being expressly agreed that the rent of the noabad land should be increased only in the case of the Government revenue being increased, therefore, the contract in this case shows clearly that it was the intention of the parties that the landlord should be precluded from raising the rent in any other ease. But that argument does not seem to me to be sound. The covenant cannot be read with, reference only to the revenue payable to the Government in respect of the noabad land. Prom its very terms, it would' include any new cess, tax or imposition which the Government should impose upon the land, whether it is imposed on the taraf or the noabad land. I see no reason why the covenant should be read in the restricted manner that the appellants have asked us to read it, as having reference only to the revenue payable to the Government in respect of the noabad land. I think we should not be justified in reading a covenant drawn in general words with reference to a particular tax in respect of particular land. In my opinion, we should read the covenant with reference to the whole land and with reference to any imposition that may be made by the Government in respect of any portion of the land. I do not think that we can read the covenant so as to alter the right of the landlord to have the rent enhanced in a suit properly brought for the purpose.
3. The other portion of the document that was relied upon as showing that the landlord had precluded himself from the right of applying to have the rent increased was the portion which I have already read in which the landlord was given the right, if the rent was in arrears, to apply to have the rent recovered under the terms of what is known as the Putni Regulation. But it is admitted that the Putni Regulation applies in cases where the rent is not permanently fixed. Where, as in this case, it has been agreed between the parties that resort might be had under the Putni Regulation to recover the rent in arrears, the rent cannot be said to have been permanently fixed. It seems to me that that clause in the lease does not assist the appellants in any way. The case is really thrown back on this:-- Does the covenant by the lessee to pay any new assessment that the Government should impose on the land, show that the landlord intended to preclude himself from having the ordinary right that a landlord would have of applying to have the rent enhanced in a proper case?' I am clearly of opinion that it does not. The covenant, as I have already said, cannot be read in the restricted way that the appellants wish it to be read and that being so, there are no words in this lease which would show that the landlord had given up the ordinary right he had, namely, of applying to the Court to have the rent enhanced in a proper case. In the result, I agree with the decision of the Court of Appeal below. The present appeal, therefore, fails and mu3t be dismissed with costs.
4. Let the record be sent down at once.
5. I agree.
No. 3206 of 1914.
6. This appeal not being pressed is dismissed with costs.