Bisheshar Singh vs Patan Mahton and Others

Kulwant Sahay, J.—These three appeals by the plaintiff arise out of three suits for recovery of arrears of rent for the years 1328 to 1331 F.S. In the plaint it was stated that the lands in respect of which the suits were instituted were entered in the Survey khatian as "kabil lagan" but as a matter of fact the defendants were paying rent ''at the rate of Rs. 10 per bigha. The prayer in each of the plaints was that a decree may be made in favour of the plaintiff for arrears of rent at the rate of Rs. 10 per bigha and if the Court found that this was not the rate or rent of the holdings in dispute then a fair and equitable rent be assessed a decree may be made for the years in suit at such rate. The defence of the defendants was that the rate of rent for the holding in dispute was Rs. 3 per bigha and they pleaded payment. The learned Munsif found that the plaintiff had failed to prove that the holdings were held at a rent of Rs. 10 per bigha, and that the defendants had also failed to prove that Rs. 3 per bigha was the rental as claimed by them. He was of opinion that, as a matter of fact, there was no existing rental for the holdings in dispute, and that the entry in the khatian which was made on contest was correct and the holdings were actually "kabil lagan". He accordingly proceeded to assess fair rent, and he was of opinion that Rs. 6 per bigha would be fair and equitable rent for the holdings; and, having disbelieved the plea of payment, he made a decree in favour of the plaintiff at the rate of Rs. 6 per bigha. He, however, disallowed the claim for damages on the ground that rent had not till then been assessed for the lands. The defendants went in appeal before the Subordinate Judge, and the learned Subordinate Judge has set aside the decree of the Munsif and made a decree in favour of the plaintiff at the admitted rate of Rs. 3 per bigha. He discards the entry in the Record of Rights with the following observations:

According to the pleadings of both parties the entry of ''kabil lagan'' becomes of no importance. It is the case of both parties that certain rent has all along been paid for these lands either at Rs. 10 or at Rs. 3 per bigha. The parties have by their pleadings given a good bye (?) to the entry as the basis of their case.

He then observed that the suits were not suits for assessment of fair rent but for recovery of arrears of rent for past years at the rate of Rs. 10 per bigha. He then considered the question whether the alternative prayer for the ascertainment of fair and equitable rent was maintainable under the law, and he was of opinion that the suits being for recovery of arears of rent no assessment of fair rent for past years could be made and " that the prayer for assessment of fair tent was not maintainable when the parties pleaded that a certain amount of rent was payable by the tenants before the institution of the suits; and he relied upon the case of Gobind Lal Sijuar v. Ram Saran Lal 68 Ind. Cas. 433 : 2 P.L.T 642. He found that the plaintiff had failed to prove that Rs. 10 was the rate of rent per bigha of the holdings in dispute and under the circumstances the plaintiff was entitled merely at the admitted rate of Rs. 3 per bigha. He accordingly made a decree at the rate of Rs. 3 per bigha and allowed damages to the plaintiff at Rs. 25 per cent.

In the first place it is clear that the learned Subordinate Judge has fallen into an error in saying that because the parties alleged that a certain rent had all along been paid for the holding in dispute therefore, the entry of "kabil lagan" in the Record of Rights was of no importance. As was pointed out in Abhiram Bedanta v. Chintamani Bedanta 100 Ind. Cas. 701 : 8 P.L.T. 121 : 6 Pat. 342 : A.R. 1972 Pat. 164. the statutory presumption of correctness of the entries made in the Record of Rights prevailed even when both parties to a litigation allege that the entries were incorrect. He referred to the fact that that entry was made after contest. The learned Subordinate Judge has not at all considered the question as regards the correctness or otherwise of that entry. It was incumbent upon him to examine the evidence and to come to a finding on the question whether the presumption of correctness of the entry in the Record of Rights had been rebutted by either party. In this case the question whether the holdings are "kabil lagan", or whether there is an existing rent, is of importance. The reliefs asked by the plaintiff in the plaint were in the alternative. In the first place the plaintiff alleged that there was an existing rental, viz., at the rate of Rs. 10 per bigha; in the alternative he stated that if it was found that there was no existing rental, then a fair and equitable rent might be assessed. There was nothing wrong in making such an alternative prayer. It was open to the plaintiff to show that the entry in the Record of Rights was incorrect. It was also open to him to say that if the entry in the Record of Rights be correct, then a fair and equitable rent should be assessed for the holdings The learned Munsif found that there was no existing rent and accepted the alternative prayer and assessed Rs. 6 per bigha as fair and equitable rent. The learned Subordinate Judge has not considered the question at all. The case must, therefore, go back to the learned Subordinate Judge for a finding whether the presumption of correctness of the entry in the Record of Rights as regards the holdings in dispute being "kabil lagan" has been rebutted. If he finds that the presumption has been rebutted and there is an existing rent, he should determine what the existing rent is, while if he cannot determine it, it will, as indicated below, be necessary for him to decree the rent for the years in suit at the rate admitted by the defendants. If he finds that the presumption has not been rebutted and that the entry in the Record of Rights is correct, it will be necessary for him to consider the defendants'' objections, if any, to the assessment by the Munsif of the fair and equitable rent at Rs. 6 per bigha. It does not appear from the judgment of the learned Subordinate Judge whether the defendants raised any objection to Rs. 6 being fair and equitable on the supposition that there was no existing rent. There does not appear to have been any objection on the part of the plaintiff to the assessment of the rent by the Munsif.

It has been contended on behalf of the appellant that even assuming that there was an existing rent and that the plaintiff had failed to prove what that existing rent was, the court was not bound to give a decree merely at the admitted rate but should have determined what was fair and equitable rate of rent for the holdings, and reference has been made to Sections 24, 27 and 158 (1)(d) of the Bengal Tenancy Act. The argument is that under s 24 the defendant was bound to pay rent for his holding at a fair and equitable rate and, if the Court finds that the plaintiff has failed to prove the rate claimed by him and the defendant has also failed to, prove the rate alleged by him, it was the duty of the Court to make a decree at such rate as it thinks to be fair and equitable. Section 24 has to be read along with Section 27 which says that the rent for the time being payable by an occupancy raiyat shall be presumed to be fair and equitable until the contrary is proved. If there be an existing rent for the holding than that rent must be presumed to be fair and equitable and the Court cannot make a decree at any other rate. If the plaintiff fails to prove the rate to be as claimed by him; he cannot ask the Court to determine fair and equitable rate, because he cornea to Court with the allegation that there is an existing rate of rent, and it is for him to prove what that rent is in order to succeed in the action.

I am of opinion that when the plaintiff comes to Court with the allegation that there is an existing rent or rate of rent and fails to prove it, he can only be given a decree at the rate admitted by the defendant, although the Court may not be satisfied that that is the real or the proper rate. If, therefore, in the present suits the learned Subordinate Judge comes to the finding that there is an existing rent or rate of rent, and that the plaintiff has failed to prove it, he would be justified in making a decree at the rate admitted by the defendants. The learned Subordinate Judge has come to the finding that no decree can be made for arrears of rent at the rate assessed as fair and equitable, on the view that such assessment is made on the basis of there being no existing rent and that there can be no decree for past years at rents assessed in the suit. In this connection it is sufficient to refer to the decision of Das and Fazl Ali, JJ., in Jai Narayan Munder and Others Vs. Kuleswar Singh, where Das, J., distinguished and explained his previous decision in Gobind Lal Sijuar v. Ram Saran Lal 68 Ind. Cas. 433 : 2 P.L.T 642 and held that in a suit for assessment of fair and equitable rent the landlord can get damages for use and occupation of the land by the tenant-defendants for a period of three years. This view was adopted and approved of by Ross, J., in Pahwari Rai and Others Vs. Janki Kuer, . If, therefore, the learned Subordinate Judge finds that there was no existing rent and assesses a fair and equitable rent or rate of rent, which will operate in future years, it is open to him also to make a decree in favour of the plaintiff by way of damages for three years before the institution of the suits at the said rent or rate of rent subject, of course, to such modifications, if any, as may be required by the fact that while that rent or rate of rent operates in future, the damages are assessable for years already past.

The appeals are accordingly allowed and the case remanded to the learned Subordinate Judge for disposal according to the observations made above. Costs will abide the result.

Macpherson, J.

I agree.