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Nilmani Kar and ors. Vs. Raja Sati Prasad Garga Bahadur and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal397,61Ind.Cas.82
AppellantNilmani Kar and ors.
RespondentRaja Sati Prasad Garga Bahadur and ors.
Cases ReferredUmed Ali v. Habibullah Khajeh Habibullah Umed Ali
Excerpt:
bengal tenancy act (viii of 1885), section 52(6) - 'at the time the measurement, on which the claim is based was made', meaning of. - asutosh mookerjee, acting c.j.1. this reference has been made in connection with an appeal by the tenants, defendants, in a proceeding under section 105 of the bengal tenancy act for settlement of fair and equitable rent. one of the questions in controversy was, whether the defendants paid a consolidated rent for the tenancy, or whether they were liable to pay additional rent for increment of area as disclosed by recent survey over the area shown in the rent-roll of the landlords. the revenue officer and the special judge answered this question in favour of the landlords. on second appeal to this court, the decision of the special judge was assailed on the ground that his conclusion was based upon an erroneous construction of sub-section (6) of section 52 of the bengal tenancy act, that.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This Reference has been made in connection with an appeal by the tenants, defendants, in a proceeding under Section 105 of the Bengal Tenancy Act for settlement of fair and equitable rent. One of the questions in controversy was, whether the defendants paid a consolidated rent for the tenancy, or whether they were liable to pay additional rent for increment of area as disclosed by recent survey over the area shown in the rent-roll of the landlords. The Revenue Officer and the Special Judge answered this question in favour of the landlords. On second appeal to this Court, the decision of the Special Judge was assailed on the ground that his conclusion was based upon an erroneous construction of Sub-section (6) of Section 52 of the Bengal Tenancy Act, That sub-section is in the following terms:

When in a suit under this section, the landlord or tenant proves that, at the time the measurement on which the claim is based, was made, there existed, in respect of the estate or permanent tenure or part thereof in which the tenure or holding is situate, a practice of settlement being made after measurement of the land assessed with rent, it may be presumed that the area of the tenure or holding specified in any patta or kabuliyat, or (where there is an entry of area in a counterfoil receipt corresponding to the entry in the rent roll) in any rent roll relating to it, has been entered in such patta, kabuliyat or rent roll after measurement.

2. The appellants argued before the Division Bench that the expression at the time the measurement on which the claim is based was made in Section 52(6), signified 'at the time when the tenancy in question originated,' and, in support of this position, relied upon the decision in Umed Ali v. Habibullah Khajeh Habibullah v. Umed Ali (1891) A.C. 107 at P. 144 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676, where it was ruled that the words mentioned did not refer to the measurement upon which the excess area had been found out before the institution of the suit. The respondents submitted, on the other hand, that this was not the correct inter, predation of the sub section which, according to them, referred to the measurement by which the augmented area, for which additional rent was claimed, had been ascertained. The Division Bench was unable to accept the interpretation placed upon Section 52(6) in the case of Timed Ali v. Habibullah Khaseh Habibullah v. Umed Ali (1891) A.C. 107 at P. 144 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676, and accordingly referred the following question to a Full Bench for decision:

Does the expression at the time the measurement on which the claim is based was made in Section 52(6) refer to the measurement upon which the excess area is found out before the institution of the suit, or does it, as ruled in Umed Ali v. Habibullah Khajeh Habibullah v. Umed Ali (1891) A.C. 107 at P. 144 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676, refer to the measurement made at the time of the original settlement.

2. As the question arose in an appeal from Appellate Decree, the whole appeal has been, under the Rules of the Court, referred to the Full Bench for decision, The appellants have contended before this Bench, that to determine the meaning of the expression at the time the measurement on which the claim is based was made,' we should first ascertain what difficulties had been created by the law as it stood before Section 52 was amended by the insertion of Sub-section (6) therein, and then interpret the phrase on the assumption that the Legislature intended to remedy what might have been considered as the undesirable result of the Section in its original form. The respondents have argued that this is not the correct method of interpretation of a statutory pro vision framed in unambiguous language, and they have placed reliance upon the following passage from the judgment of Lord Herschell in Bank of England v. Vagliano (1890) A.C. 107 at P. 144 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676

The proper course is, in the first instance, to examine the language of the Statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a Statute, intended to embody in a Code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a Statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used, instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even of an obsolete proceeding such as a demurrer to evidence. I am, of course, far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the Code. If, for example, a provision be of doubtful import, such resort would be perfectly legitimate Or, again, if in a Code of the Law of Negotiable Instruments, words be found which have previously acquired a technical meaning, or been used in a sense other than their ordinary one, in relation to such instruments, the same interpretation might well be put upon them in the Code. I give these as examples merely; they, of course, do not exhaust the category. What, however, I am venturing to insist upon is, that the first step taken should be to interpret the language of the Statute, and that an appeal to earlier decisions can only be justified on some special ground.

3. Our attention has also been drawn to the judgment of the Judicial Committee in Norendra Nath Sarcar v. Kamalbasini Dasi 23 C. 563 (P.C.) : 23 I.A. 18 : 6 Sar. O.C.J. 667 : 6 M.L.J. 71 : 12 Ind. Dec. (N.S.) 374, where Lord Maanaghten quoted with approval the observations of the Lard Herschell we have just set out. But it has been maintained on behalf of the appellants that this principle of construction is restricted in its application only to codifying Statutes and does not extend to amending Statutes, There is clearly no solid foundation for this distinction. In the case of a codifying Statute, there may some times be a presumption that a particular provision was intended to be a statement of the existing law rather than a substituted enactment, and from this point of view an enquiry into the pre existing law may conceivably be useful where the language of the codifying Statute is open to doubt. In the case of an amending Statute, on the other hand, the manifest intention is to alter the preexisting law, and speculation that the law was intended to be altered only in a certain repack or to a particular extent, must usually rest on a slender basis; and we do not read the observations of Lard Halsbury on amending Statutes in Eastman Photographic Materials Co. v. Comptroller General of Patents, Designs and Trade Marks (1898) A.C. 571 at P. 575 : 67 L.J.Ch. 628 : 79 L.T. 195 : 47 W.R. 152 : 15 R.P.C. 476 : 14 T.L.R. 527, as justifying an historical enquiry into the previous state of the law even when the language used in the amending Statute is free from ambiguity and uncertainty. On the other hand, in a case of real doubt, the test formulated by Lord Coke would be appropriate; 56 Ind. Cas. 38 : 47 C. 266 : 31 C.L.J. 68 what was the law before the Act was passed : (1891) A.C. at P. 144 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676 what was the mischief or defeat for which the law had I not provided : 56 Ind. Cas. 38 : 47 C. 266 : 31 C.L.J. 68what remedy Parliament has appointed; (1898) A.C. 571 at P. 575 : 67 L.J.Ch. 628 : 79 L.T. 195 : 47 W.R. 152 : 15 R.P.C. 476 : 14 T.L.R. 527and the reason of the remedy; Heydon's case (1581) 3 Coke 7a : 76 B.R. 637, Marshaltea's case (1613) 10 Coke 68b (73a) : 77 E.R. 1027. reference may also be made in this connection to the judgment of Saakey, J., in Attorney General v. Brown (1920) 1 K.B. 773 at p. 791 : 89 L.J.K.B. 1178 : 122 L.T. 553 : 84 J.P. 113 : 36 T.L.R. 165, where reliance is planed upon the observations in Starding v. Morgan (1558) 1 Plowden 199 : 75 13. R, 305, Heydon's case (1581) 3 Coke 7a : 76 B.R. 637 and Howkins v. Galhercole (1855) 6 D.M. & G. 1 : 24 L.J. Ch. 332 : 1 Jur. (N.S.) 481 : 3 W.B. 191 : 108 R.R. 1 : 3 Eq. Rep. 318 : 43 E.R. 1129. The true rule of interpretation of all Statutes is that stated by Burton, J., in Warburton v. Loveland (1828) 1 Had. & Broo. 623 at p. 648 and adopted by Lord Wensleydale in Grey v. Pearson (1857) 6 H.L.C. 61 at p. 106 : 26 L.J. Ch. 473 : 3 Jur. (N.S.) 823 : 5 W.R. 454 : 108 R.R. 19 : 10 E.R. 1216, namely, that the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency. Once we depart from this canon of construction, which has been repeatedly affirmed, for instance, by Lord Wensleydale himself in Thellusson v. Rendlesham (1859) 7 H.L.C. 429 at p. 519 : 28 L.J. Ch. 948 : 5 Jur. (N.S. ) 1031 : 7 W.R. 563 : 115 R.R. 229 : 11 K.R. 172 by Lord Selborne and by Lord Blackburn in Caleionian Ray. Co. v. North British Ry. Co. (1881) 6 App. Cas. 114 at pp. 121. 131 : 29 W.R. 685. by Lord Fitzgerald in Bradlaugh v. Clarke (1883) 8 App. Cas. 354 at p. 384 : 52 L.J.Q.B. 505 : 48 L.T. 651 : 31 W.R. 677 and by Lord Bramwell in Hill v. East and West India Dock Co. (1881) 9 App. Cas. 418 at p. 461 : 53 L.J. Ch. 842 : 51 L.T. 163 : 32 W.R. 925 : 48 J.P. 788, we are launahed, as Lord Cranworth said in Cundry v. Pinniger (1851-52) 1 De G.M. & G. 502 at p. 605 : 21 L.J. Ch. 405 : 16 Jur. 483 : 92 R.R. 40 : 42 B.R. 647 affirmed on Appeal 14 Beav. 94 : 20 L.J. Ch. 635 : 17 L.T, (O.S.) 217 : 51 E.R.222, into a sea of difficulties which it is difficult to fathom. Consequently, whether the Statute codifies or amends the law if its provisions are expressed in jar and unambiguous terms, resort should to be bad to the pre-existing law, although low reference may be useful and legiti-ate where the provisions are of doubtful apart or are couched in language which id previously acquired a technical meaning: in, as Lord Watson said in Robinson v. Canadian Pacific Ry. Co. (1892) A.C. 481 at P. 487 : 61 L.J.P.C. 79 : 67 L.T. 505, an appeal to earlier ,we and decisions for the purpose of interpreting a Statute can only be justified upon some such special ground.

4. Now, in the case before us, the expression at the time the measurement on which the claim is based was made' obviously refers only to one measurement, though, no doubt comparison of the measurements on two occasions is, as contended by the appellants, necessary to determine whether the claim is or is not well-founded, The one measurement mentioned is the measurement whereon the claim is made to rest, that is, the measurement which immediately precedes the claim put forward, and is made the basis thereof. If we leave out of consideration a measurement made by a public authority, for instance, a measurement in connection with settlement operations (which may be availed of by the landlord and the tenant alike), it is clear that the claim, and consequently the measurement, may, under proper conditions, be made either by the landlord or the tenant,--by the former, if he puts forward a claim for additional rent, by the latter if he advances a claim for reduction of rent. Sub-section (6) is, by its very terms, applicable only when the claim for additional rent or for reduction of rent is made on the basis of measurement, This does not imply that a claim of either description may not be made under Section 52(1) without measurement; but it is essential that the party who seeks the benefit of the presumption mentioned in Sub-section (6) must base his claim on measurement. The appellants have urged, however, that although the plain grammatical sense of the words may tend to negative their contention, still we should adopt a forced interpretation, not justified by the natural meaning of the clear and explicit words employed by the Legislature, so as to avoid what has been described as disastrous consequences to the tenant. The interpretation which we are pressed to accept is, that the measurement on which the claim is, based' is identical with 'the measurement made on the occasion of the last preceding settlement for adjustment of rent.' In our opinion, there are weighty reasons against the acceptance of this construction. In the first place, this interpretation cannot be reconciled with the normal meaning of the words used by the framers of the Statute. In the second place, there is no reason to apprehend a special benefit to the landlord and exceptional hardship on the tenant, for the sub Section may be utilised by either the landlord or the tenant as occasion may arise. In the third place, the presumption is not only rebuttable but is also not obligatory on the Court. There is, thus, no substantial reason in the present case to depart from the rule enunciated by Tindal, C.J., in Warburion v. Loveland (1832) 2 Dow. & Ch. 480 at p. 489 : 6 Bligh (N.B.) 1 : 98 E.R. 844 : 6 E.R. 806, namely, that, 'where the language is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the Statutes speak the intention of the Legislature;' we need not speculate whether we shall fulfill the intention of the Legislature, for we must intend the Legislature to have meant what they have actually expressed. In the words of Coleridge, J., in Pocock v. Ticketing (1852) 18 Q.B.D. 789 at p. 797 : 21 L.J.Q.B. 265 : 16 Jur. 760 : 118 E.R. 298 once we have ascertained the mind of the Legislature as expressed in the words used, 'nothing is more dangerous than to flinch from that conclusion, because we think the enactment is less wise or efficacious than it might have been made or even wholly fails of its subject; perhaps, the most efficacious mode of procuring good laws, certainly the only one allowable to a Court of Justice, is to act fully up to the spirit and language of bad ones and to let their inconvenience be fully felt by giving them their full effect.' The observations of Lord Campbell, C.J., in R. v. Sheen (1859) Bell. C.C. 97 : 28 L.J.M.C.91 at p. 94 : 5 Jur. (N.S.) 151 : 7 W.R. 255 : 8 Cox, C.C. 143 point in the same direction:

Where, by the use of clear and unequivocal language capable only of one construction, anything is enacted by the Legislature, we must enforce it, although, in our own opinion, it may be absurd or mischievous. But if the language employed admit of two constructions, and according to one of them the enactment would be absurd and mischievous, and according to the other it would be reasonable and wholesome--we surely ought to put the latter construction upon it as that which the Legislature intended.

5. To the same effect is the emphatic pronouncement by Lord Brougham in Crawford v. Spooner 4 M.I.A. 179 at P. 187 : 6 Moo P.C. 1 at P. 19 : 18 E.R. 667 : 13 E.R. 582:

The construction of the Act most be taken from the bare words of the Act. We cannot fish out what possibly may have been the intention of the Legislature; we cannot aid the Legislature's defective phrasing of the Statute; we cannot add, and mend, and, by construction, make up deficiencies which are left there. If the Legislature did intend that which it has not expressed clearly; much more, if the Legislature intended something very different; if the Legislature intended something pretty nearly the opposite of what is said, it is not for Judges to invent something which they do not meet with in the words of the text (adding their construction of the text always, of course, by the context), it is not for them so to supply a meaning, for, in reality, it would be supplying it; the true way in these cases is, to take the words as the Legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered; and, therefore, if any other meaning was intended than that which the words purport plainly to import, then let another Act supply that meaning, and supply the defect in the previous Act.6. Besides these considerations, there are two other points which deserve notice. The appellants have argued that, in the view we take, the Court may raise a two-fold presumption, because, from the existence of a practice of measurement in recent times, the Court may presume backwards that a practice measurement existed in former times and farther that the practice was followed in the case of the particular tenancy concerned. There is, in our opinion, no objection on principle to such a two-fold presumption. Indeed, another instance of a rebuttable double presumption (which is not merely optional with but is obligatory on the Court) is embodied in Section 50 of the Bengal Tenancy Act. That section provides that, upon proof of payment of rent at a uniform rate for twenty years, the Court shall presume, not merely that the rent has been paid at a uniform rate during the whole period of the subsistence of the tenancy, but also that they Tenancy itself was in existence at the time of the Permanent Settlement; in other words, the uniformity of rent is presumed backwards and, further, from existence for twenty years, existence in 1793 is presumed. The presumption embodied in Section 50 thus clearly militates against the theory that there cannot be a double presumption. On the other hand, if the view urged by the appellants were adopted, Sub-section (6) would be superfluous. The appellants contend that the intention of the Legislature was to authorise the Court, upon proof of the existence of the practice of measurement at the date at the inception of they Tenancy or the last adjustment of the rent, to presume that the practice was followed in the case of the disputed tenancy. This presumption, however, the Court would be competent to raise, independently of Section 52, Sub-section (6), by an application of Section 114 of the Indian Evidence Act, illustration (f), whereof lays down that the Court may presume that the come-on course of business has been followed in particular cases. On the other hand, there is some force in the contention of the respondents that, if the interpretation suggested by the appellants were adopted, Sub-section (6) might be practically nullified. The real difficulty in this class of cases is to adduce evidence of the date of the inception of they Tenancy or the last adjustment of the rent ; and, according to the construction put forward by the appellants, unless such date was accurately determined, no question could possibly arise, as to the existence of practice of measurement at that period, possibly a very remote period, in the case of tenancies whose origin is lost in obscurity. Further, if the question of hardship can be taken into account by the Court, it is by no means certain that, when the occasion irises, it may not be far more difficult for the tenant than for the landlord to prove the history of they Tenancy or the existence of a practical of measurement on the estate 30 as to enable him to take advantage of the presumption mentioned in Sub-section (6), From whatever point of view we may thus approach the consideration of the question, there is no escape from the conclusion that this is pre-eminently a case where we should interpret the clear and unambiguous language of the Statute in its ordinary sense; it is by no means conclusively proved that the interpretation leads to such 1 manifest,' palpable,' evident,' absurdity,' 'repugnance,' contradiction,' 'incongruity,' 'inconsistency,' 'inconvenience,' 'hardship,' mischief' or 'injustice,' as to justify an attempt by the Court to have recourse to surmises about the intentions of the Legislature and not to abide by the grammatical and ordinary sense, the simple and literal interpretation of the words used by them. We may usefully recall in this connection the weighty observations of Jervis, C.J, in Abley v. Dale (1851) 11 C.B. 378 at P. 391 : 20 L.J.C.P. 233 : 15 Jur. 1012 : 87 R.R. 697 : 138 E.R. 519:

if the precise words used are plain and unambiguous, in our judgment, we are bound to construe them in their ordinary sense, even though it do lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of Lagislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning.7. We, must, consequently answer the question referred to the Full Bench in the following terms:

The expression at the time the measurement on which the claim is based was made, in Section 52(6) of the Bengal Tenancy Act refers to the measurement upon which the area in excess or defect, as the case may be, is found out before the institution of the suit, it does not, as ruled in Timed Ali v. Habibulla 56 Ind. Cas. 38 : 47 C. 266 : 31 C.L.J. 68, refer to the measurement made at the time of the original settlement or the last preceding adjustment of rent.8. Although, according to the Rules of Court, the whole appeal has been referred to the Full Bench, the case will he returned, by consent of parties, to the Division Bench for final disposal, as the appeal involves other questions which arise in several connected appeals and these may be conveniently heard together. The costs of this reference will be in the discretion of the Division Bench.

Fletcher, J.

9. I agree with the Chief Justice.

N.R. Chattbrjba, J.

10. I agree. I wish to add only a few words. Sub-section (1)(a) of Section 52 of the Bengal Tenancy Act lays down that a 'tenant shall be liable to pay additional rent for all land proved by measurement to be in excise of the area for which rent has been previously paid by him.' The excess area is, no doubt, to be found out by measurement, but such measurement by itself cannot show the excess area unless the original area is found. The landlord, therefore, has to prove two measurements, one made at the time of the original settlement, and the other which may be called the re-measurement (with the same standard) made for ascertaining the excess area. The question is, which of the two measurements is referred to in Sub-section (6) of Section 52.

11. Sub-section (6) was not part of the Section as originally framed; it was added to the Section by Bengal Act I of 1907, and it is contended before us on behalf of the appellants that we ought to see what the law was before, what difficulties were created by the Section as it originally stood, and the remedy which it was the object of the amendment to provide for. On the other hand, the learned Pleader of the respondents contends that we should examine the language of the Statute we have to consider, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and reliance is planed on the judgment of Lord Herschall in Bank of England v. Vagliino (1891) A.C. at P. 144 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676 and the judgment of the Judicial Committee in Norendra Nath Sarcar v. Ramalhasini Dasi 56 Ind. Cas. 38 : 47 C. 266 : 31 C.L.J. 68.

12. There is no doubt that, where the language is plain and unambiguous, the law should be ascertained by interpreting the language used, though, as pointed out by Lord Herschell in the case sited above, resort may be had to the previous state of the law for the purpose of aiding in the construction of the Code, where a provision is of doubtful import. In Eastman Photographic Materials Co. v. Comptroller General of Patents, Design and Trade Marks (1898) A.C. 571 at P. 575 : 67 L.J.Ch. 628 : 79 L.T. 195 : 47 W.R. 152 : 15 R.P.C. 476 : 14 T.L.R. 527 where the question related to the construction of Section 64, Sub-section (1), of the Patents, Designs and Trade Marks Act, 1883 as amended by Section 10, Sub-section (1), of the Act of 1888, Halsbury, L.C, observed: 'l think it desirable to say something as to what sources of construction we are entitled to appeal to in order to construe a Statute. Among the things which have passed into canons of construction recorded in Heydon's case (1581) 3 Coke 7a : 76 B.R. 637.

(6) (1613) 10 Coke 68b (73a) : 77 E.R. 1027 we are to see what was the law before the Act was passed, and what was the mischief or defeat for which the law had not provided, what remedy Parliament appointed and the reason of the remedy. Now, the law before the Act now in question was passed was. one which had given rise to considerable litigation' and after referring to the remarks of Turner, L. J, in Hawkins v Gathercole (1855) 6 D.M. & G. 1 : 24 L.J. Ch. 332 : 1 Jur. (N.S.) 481 : 3 W.B. 191 : 108 R.R. 1 : 3 Eq. Rep. 318 : 43 E.R. 1129 that the Judges have collected the intention : Sometimes, by considering the cause and necessity of making the Act, and Quoting with appeal the remarks of Lord Blackburn in the case of river Wear commissioners v. Adamion (1877) 2 App. Cas. 743 at P. 763 : 47 L.J.Q.B. 193 : 37 L.T. 543 : 26 W.R. 217 viz., in all cases the object is to see what is the intention expressed by the words used. But from the imperfection of language, it is impossible to know what that intention is without enquiring further and seeing what the circumstances were with reference to which the words were used and what was the object appearing from those circumstances which the person using them had in view' observed: 'to construe the Statute now in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy.

7. This case is later than those cited on behalf of the respondents. It dose not appear, however, that Lord Halsbury enunciated any principles at variance with those laid down in the cases sited on behalf of the respondents, or that they were intended to be applicable even if the language of the amending Act is free from ambiguity. The question, therefore, is, whether the words the measurement on which the claim is based was made' are plain and unambiguous. As the landlord has to prove two measurements, the words were considered as ambiguous in the case of Umed Ali v. Habibullah Khajeh Habibullah Umed Ali 56 Ind. Cas. 38 : 47 C. 266 : 31 C.L.J. 68, to the decision of which I was a party; and if they are ambiguous, there is much to he said in favour of the contention raised on behalf of the appellant. But upon further consideration I agree in holding that the claim is based upon the measurement by which the excess area is found out, and, that being so, it is not open to us to go behind the language of the section.

8. I do not agree with the contentions raised on behalf of the respondents, viz, that there is no real hardship because the Court only may presume, or that the presumption is a rebuttable one. Where no evidence is adduced on either side, the Court naturally would resort to the presumption, and if the landlord cannot prove the measurement and has to at the Court to raise a presumption from a recent practice of settlement being made after measurement, it would be impossible for the tenant to rebut such a presumption relating to a matter which might have happened generations ago. It is true that the tenant in a claim for redaction of rent may also ask the Court to draw the presumption from such practice of measurement, but cases of claim for reduction by tenants are rare in comparison with cases by landlords for additional rent for excess area.

9. As for the contention that the Court can, independently of the provisions of Sub-section (6) of Section 52 of the Bengal Tenancy Act, raise the presumption, from the existence of a general practice of measurement, that the practice was followed in the particular case under the provisions of Section 114, illustration (f) of the Evidence Act, I entertain doubts upon the point, having regard to what this Court has laid down in many cases as to what the landlord has to prove in each case.

10. It is unnecessary, however, to discuss these matters further, because although the provisions of Sub-section (6) of Section 52 of the Bengal Tenancy Act, may cause hardship upon the tenant, we are bound to give effect to the language of the Sub-section.

Richardson, J.

11. I agree with the Chief Justice.

Ghosh, J.

12. 1 agree with the Chief Justice.


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