1. This second appeal arises out of a suit brought under Section 52 of the Bengal Tenancy Act for enhancement of rent, on the ground that the tenants are in possession of land 'proved by measurement to be in excess of the area for which rent has been previously paid'.
2. Gouri Pattra's case (Gouri Pattra v. H.R. Reily) 20 C. 579 : 10 Ind. Dec. (N.S.) 392. is the ruling authority upon the main principles governing such a claim. It is true that Clauses (5) and (6) have since been added to the section, Clause (5) by the Amending Act, 1898, and Clause (6) by the Amending Act of 1907. But Clause (5) merely corrects a misapprehension which had arisen in regard to a particular passage in the judgment in Gouri Pattra's case (3) [Rajkumar v. Ram Lal 5 C.L.J. 538 at p. 540], and Clause (6) only applies when such a practice has been proved by the landlord or tenant as is mentioned in the clause.
3. If regard be had to the terms of the section itself the question in every case, the landlord being the claimant, is whether the tenant is in possession of land 'in excess of the area for which rent has been previously paid by him' Section 52(1)(a)]. Light is thrown on the meaning of the words by Clause (2). That clause lays down that in determining the area for which rent has been previously paid, the Court shall, if so required by any party to the suit, have regard to' four matters, of which I need only mention three:
(a) The origin and conditions of the tenancy, for instance whetherthe rent was a consolidated rent for the entire tenure or holding.
(c) the length of time during which the tenancy lasted without dispute as to rent or area', and
(d) the length of the measure used or in local use at the time or the origin of the tenancy as compared with that used or in local use at the time of the institution of the suit.
4. The burden of proving an increase in 'the area, for which rent has been previously paid' is on the landlord. Speaking generally, he may discharge the burden in two ways:
5. (1) By proving that the tenant is in possession of excess land outside the boundaries of the land originally settled with him, for instance land obtained by encroachment or alluvial increment.
6. (2) By proving that at the original settlement of the land the rent was fixed at a rate per bigha or other unit of measurement or at differential rates according to the quality of the land and so forth, and that in fact and substance the agreement was that the tenant should pay at that rate or at those rates for all the land of which he was put in possession according to its true area, and by further proving that the existing rent is less than the rent payable under such agreement.
7. It is in connection with this second method of proving a right to increase of rent that questions may arise under Clause (2)(a) as to the conditions of the tenancy and whether the rent originally fixed was or was not a consolidated rent for the whole area. The rent might be a consolidated rent, even if it was calculated at so much per measured or estimated bigha. The question would depend on the true intention of the parties to be gathered, in the absence of a written instrument, from all the circumstances. When, however, it is proved that the tenant is holding land outside and beyond the original boundaries, the question as to the rent being a consolidated rent cannot well arise, except possibly in connection with land gained by alluvion.
8. This second method is that to which the learned Judges in Gouri Pattra's case (3 refer, when they speak of the landlord showing 'that the previous settlement was made on the basis of a measurement and the rates of rent as applied to the area then determined, while on a fresh measurement made by the same length of measure it has been found that he is entitled to receive additional rent which by carelessness or neglect or some other reason he had hitherto lost.'
9. In Rajendra Lal Goswami v. Chunder Bhusan Goswami 8 C.W.N. 318. Banerjee, J., said that the words 'the area for which rent has been previously paid' mean the area with reference to which the rent previously paid had been assessed or adjusted. That was a case where enhancement was claimed by the first method but the language is applicable also to the second method. The cases as I understand are brought together in this sense in the judgment of Coxe, J., in Akbar Ali Mian v. Hira Bibi 15 Ind. Cas 332 : 16 C.L.J. 182., in which N. Chatterjee, J., concurred.
10. The case of Lakhi Narain Sarongi v. Sri Ram Chandra Bhunya 11 Ind. Cas. 212 : 15 C.W.N. 921 : 14 C.L.J. 146 is probably to ba regarded as an example of the first method available to the landlord, but if it be assumed that the tenant then had been holding the same land throughout and that the area of the land was in the first instance wrongly or inaccurately measured or calculated, then the case would be an example of the second method.
11. As to the effect of Clause (6) with which we are not immediately concerned, reference may be made to Uma Singh v. Rai Tarini Prosad Bahadur 25 Ind. Cas. 532 : 19 C.L.J. 451 at p. 452, where Lakhi Narain's case 11 Ind. Cas. 212 : 15 C.W.N. 921 : 14 C.L.J. 146. is cited.
12. I have said so much because it seemed necessary, for the purposes of the case before us, to endeavour to obtain a clear understanding of what the law is. I come now to the present case. In the lower Appellate Court the plaintiff has secured an enhancement of rent and before us the tenants, the defendants, are the appellants.
13. The first objection taken on their behalf to the judgment of the learned Subordinate Judge in the lower Appellate Court is this. There were several suits tried together. The Subordinate Judge says that a defendant in one of the suits, Nirod Koley, had in his possession a chitta of the year 1227, which he failed to produce when called upon to do so. The Subordinate Judge refers to this document as the suppressed chitta, and the complaint made is that he has fastened upon the tenant defendants in all the suits a responsibility for the non-production of the chitta which ought to belong to Nirod Koley alone. It remains, however, that the suits were tried together without objection by the defendants. The evidence given, so far as it was general in its character, applied to all the suits. The several defendants or sets of defendants were all failing in the same boat. No defendant dissociated himself from Nirod Koley. In the circumstances it would be difficult to say that the defendants were not all alike affected by his conduct, at any rate, none of them displayed any anxiety to forego any advantage that might accrue therefrom.
14. Then it is objected that the Subordinate Judge has decided the case not on the evidence but on surmise and conjecture, and that no doubt raises a question which is open in second appeal.
15. It is said for instance that the chitta of 1227 is a myth and there is no evidence to establish the existence of such a document. But the Subordinate Judge says that Nirod Koley and his father' and uncle were gomastas under previous patnidars, and he refers to evidence that 'this chitta, be it the original or the copy, was invariably consulted by the tenants of the Mahal whenever the transfer of a holding took place and the Koley charged a fee for this reference.' It is clear that the document so consulted should have been produced.
16.Then again it is said the Subordinate Judge has speculated as to the effect of the chitta and his conclusions must be rejected. The case stands thus:
17. In the year 1305, the Mahal of which the plaintiff is now patnidar came directly under the Burdwan Raj and a hastabud or rent roll was prepared by the officer of the Raj. As to this the Subordinate Judge says:
The area and annual rent of such each holding are given in this hastabud and the tenants not only testified to the accuracy of the entries by their respective signatures but by accepting rent receipts for a considerable number of years without any protest.
18. The Subordinate Judge has, no doubt, used the suppression of the chitta as a ground for inferring that the areas mentioned in the hastabud and the dakhilas were taken from the chitta. He refers to the evidence of Adhar Koley, one of the tenants, who, speaking apparently for all the tenants, said that the quantity of land stated in the dakhilas was correct and that he could not say how the quantity of land was incorporated in the dakhilas. The Subordinate Judge goes on:
His statements strike at the root of the defendants' dabeurat theory'--that is, that the areas were entered according to common repute--'and show that these minute specifications of areas and the annual rents in the rent receipts were taken from the chitta of 1227, which the defendants have intentionally suppressed, and were the result of a measurement to which the present defendants or their predecessors-in-interest were parties. If the areas had been put down by report as is urged by the defendants, one would have expected to find them in round numbers and not in scrupulously accurate and exact quantities running to karas and krantis.
19. In that way he arrives at the conclusion that the rent had originally been assessed on a basis of measurement and finds in effect that, whichever of the above two methods be adopted, the present area of the holdings is in excess of the area for which rent had been previously paid. His own words are:
There is no dispute as to the standard of measurement, and the increase in the areas [as ascertained by a Commissioner who made a local enquiry] must be due to the gradual encroachment on the jungle and waste lands of the Mahal or to erroneous or fraudulent measurement on the previous occasion. [The italics are mine.]
20. There is no doubt a distinction, however difficult it may be to define, between inference and speculation, but I cannot see that the Subordinate Judge in coming to that finding exceeded the boundaries of legitimate inference from the facts and circumstancps disclosed on the record. If I am correct in that view, the finding is conclusive in second appeal.
21. Objection is next taken to a subsequent passage in the judgment, which shows, it is argued, that the Subordinate Judge erroneously placed the burden of proof on the tenants. The passage runs:
The existence of the excess area is a proved fact and it is not for the landlord to explain how it came about, and this increase may be due to many events such as encroachment on the adjoining waste or khas land, etc. Unless it is established by very satisfactory and reliable evidence that the rent was a consolidated one for an area within specified boundaries irrespective of its precise quantity, the landlord is entitled to claim additional rent for the excess lands.
22. What the learned Subordinate Judge means is that the proof by the landlord of the existence of excess area shifted the burden and raised a case which the tenants had to meet. He was merely following the decision of this Court in the case, already cited, of Lakhi Narain Sarongi v. Sri Ram Chandra Bhunya 11 Ind. Cas. 212 : 15 C.W.N. 921 : 14 C.L.J. 146. Though he does not expressly refer to the case, his language clearly shows that he had it before him. If therefore, the finding as to excess area be accepted, there is no substance in the objection that the Subordinate Judge misplaced the burden of proof.
23. Then remains only one point. It is said that these are old tenancies and 'that the tenants represented that they had been holding the same land at the same rent for about one hundred years. It is suggested that the Subordinate Judge took no account of the age of the tenancies and thereby failed to carry out the direction given to him by Clause 2(c). But the mere fact that he does not refer to the point in his judgment does not show that he did not consider it. He traced the tenancies to the chitta of 1227 and other parts of his judgment show that the provisions of Section 52 as a whole were present to bis mind.
24. On the whole I am of opinion that though the case may be near the border line, no sufficient ground is shown for our interference in second appeal and that this and the analogous appeals should be dismissed. As to costs, in the circumstances we propose to make no order as to the costs of this appeal.
25. Walmsley, J.--I agree that these appeals must be dismissed, but I do so with considerable reluctance. The reasons given by the lower Appellate Court for believing that the holdings were measured in 1227 B.S. are not at all convincing, and there are other difficulties which he has dealt with very lightly. We cannot, however, go behind his findings in this case, because it is impossible to say that there is no evidence to warrant them.