Hukum Chand Sinha and Others vs Jugal Kishwar Rai and Others

Fazl Ali, J.—These appeals arise out of certain suits for enhancement of rent tinder Section 30 (b), Ben Ten Act. Both the Courts below have refused enhancement on the ground that the rents assessed on the lands are unduly high and hence these appeals by the plaintiff.

It appears that in the year 1907 the plaintiffs had filed an application in a batwara proceeding in which they stated that the lands in the patti which had been allotted to them were of very inferior quality that there were no facilities for irrigation and that it would be impossible for the landlords to realize rent from the tenants. Subsequently they claimed enhancement u/s 106, Ben Ten Act, with regard to some of the lands in their patti other than the lands involved in the present suits, but their claim was disallowed on the ground that the rents payable on the lands by the tenants were already too high. Both the petition filed by the plaintiffs and the judgment in the proceeding u/s 106, Ben Ten Act, have been admitted in evidence and have been referred to by the Courts below.

One of the points urged by Mr. Bhubaneshwar Prasad Sinha who appears for the appellants is that although the fact that the rents are unduly high may be used as a ground for not allowing enhancement at the maximum rate, it will not justify the Court in refusing enhancement altogether. While pressing this argument the learned advocate discussed at length two decisions of this Court: Nirmal Kumar and Another Vs. Gauri Prasad Singh, and Kamala Prasad Singh Vs. Bankey Prasad Singh and Others, . In the former case it was held by a Division Bench of this Court of which I was a member that in a suit for enhancement of rent u/s 30 (b), Ben Ten Act, the fact that the lands in suit were of bad quality was immaterial.

In the latter case which was decided by Das and James, JJ., it was held that u/s 35 of the Act it is necessary to show that the rent payable by the raiyat is already unduly high or that the productive capacity of the land has deteriorated through no fault of the raiyat since his rent was settled on the previous occasion; otherwise the tenant is liable to pay the enhancement which would be admissible under the rules laid down by Section 32. The Courts below have disallowed the claim for enhancement relying on the latter decision and the main contention of the learned advocate for the appellants is that not only has that decision been misunderstood by the Courts below but that they have not applied the principle laid down in the case of Nirmal Kumar and Another Vs. Gauri Prasad Singh, . The learned advocate for the appellants concedes that enhancement may be refused altogether on the ground that there has been a serious deterioration in the productive power of the land; but he contends that the claim for enhancement cannot be totally disallowed merely because it is found that the rents are unduly high.

It appears to me however that this would be unduly restricting the scope of Section 35, Ben Ten Act. The language used in Section 35 is very wide and if the Court can exercise its discretion under this section so as not to grant the maximum enhancement admissible, the Court has in my opinion also the discretion to refuse to grant any enhancement. As was pointed out by James, J., in Kamala Prasad Singh Vs. Bankey Prasad Singh and Others, , Section 30(b), Ben Ten Act, is based on the legal and historical principle that the landlord is entitled to a certain share of the produce of the holding. Thus assuming that it is found in a particular case that the rent assessed on the land is already so high that it represents much more than the value of the normal produce or the share of the landlord in the produce of the holding or that the tenant finds it impossible to pay even the rent assessed upon it, I do not see why the Court cannot use its power u/s 35, Ben Ten Act to refuse to grant any enhancement. It is true that in Nirmal Kumar and Another Vs. Gauri Prasad Singh, , this Court has held that the mere fact that the lands in suit are of bad quality will be no ground for refusing the enhancement; but it does not follow that the Court cannot u/s 35 take into consideration the fact that in a given case the rent is unduly high. The land may be of bad quality, but the rent may be equally low and in such cases the enhancement u/s 30 (b), Ben Ten Act, cannot be refused merely on the ground that the lands are of poor quality.

Thus there does not appear to me to be any conflict, direct or indirect, between the two decisions to which I have referred. The question then is whether the finding of the Courts below that the rents are unduly high in the cases under appeal is one arrived at in accordance with law. Mr. Sinha contends that this finding is not such as should bind this Court, (1) because the Courts below have ignored the provisions of Section 27, Ben Ten Act under which it should be presumed that the rent for the time being payable by an occupancy raiyat is fair and equitable until the contrary is proved, and (2) because the Courts below have taken into consideration the judgment Ex. D which Mr. Sinha contends was wholly inadmissible in evidence. Now Section 27 merely determines the question of burden of proof and all that we have to see in cases like the present is that the Court does not throw upon the landlord the onus of proving that the rent payable by the tenants for the time being is fair and equitable. In the present case although the Courts below have not expressly referred to Section 27, yet I am unable to hold that any of the Courts have misplaced onus on the plaintiff. Mr. Sinha relied mainly on a passage in the judgment of the lower appellate Court where after referring to some of the evidence in the case the learned District Judge says there is nothing to show if rents are not very high." To my mind this passage does not show that the learned District Judge wanted the plaintiffs to establish at the very outset that the rents were fair and equitable and not very high. My reading of the judgment is that the learned Judge having found that the defendants had succeeded in establishing that the rents were unduly high was not in a position to find anything in the evidence of the plaintiff to show that the defendants evidence on the point should not be accepted.

As to the judgment Ex. D, although as a rule judgments pronounced in other cases are inadmissible, yet I do not think that in the present case the learned District Judge has made any improper use of the judgment or that it was wholly inadmissible. I find also that the learned District Judge, although he has referred only to Exs. A and B in his judgment, has decided the case upon the entire evidence adduced by the parties and has not dealt specifically with the other pieces of evidence because he found himself in agreement with the decision of the trial Court in which the other evidence has been discussed.

In my opinion these appeals are concluded by findings of fact and this Court cannot interfere with the discretion exercised by the Courts below u/s 35, Ben Ten Act. The appeals are therefore dismissed with costs. There will be one set of hearing fee.