Jai Narayan Munder and Others vs Kuleswar Singh

Das, J.—This appeal arises out of a suit instituted by the respondents for the following reliefs:

(a) That it be declared by the Court that the land in suit situate in niauza Dhurgunj is liable to assessment of fair rent and the plaintiff is entitled to recover from the defendants rents of the said land; (b) that it be declared by the Court that five rupees per bigha per year besides case is fair rent of such lands in mauza Dhurgunj and consequently of the land in suit and the plaintiff is entitled to recover from the defendants rant of the land in suit at the said rate and the case; (c) that it be declared that the plaintiff is entitled to recover from the defendants arrear rents of the land in suit at the rate of five rupees par bigha per year, and a decree for Rs. 3,007-5-6 being the arrear rent and case for the years 1327 Fa. to 1380 Fs. including damages at the rate of 25 per cent be passed against the defendant as shown in Schedule (b) of this plaint; (d) that decree for cost of this suit be passed against the defendant; (e) that any other relief to which the plaintiff is entitled be granted to him.

The Courts below have assessed a fair and equitable rent payable by the tenants to the landlords. On the question as to the back rent, the learned District Judge has held that the plaintiffs are not entitled to claim rent for those years; but he has given them a decree for damages for use and occupation by the defendants of the disputed lands. The defendants appeal to this Court.

Mr. S.M. Mullick appearing on behalf of the defendants contends that the Courts below should have dismissed the plaintiff''s suit. According to him, the plaintiffs are really claiming a decree for rent for the past years at the rate to be assessed by the Court; and he contends before us that the suit in no sense is a suit for assessment of fair rent payable by the defendants to the plaintiff''s. I am unable to agree with this contention. In para. 6 of the plaint the plaintiffs submit:

that the aforesaid land is situate in Mauza Dhurgunj and the said land is liable to assessment of fair rent and the plaintiff is entitled to recover such rent from the defendant.

Prayer (b) specifically asks the Court to assess a fair and equitable rent payable by the defendants to the plaintiffs. It is impossible to understand why the Court could refuse to assess a fair rent payable by the defendants to the plaintiffs, since the land is recorded in the Record-of-Eights as Kavil lagan. Mr. S.M. Muilick relies upon the decision of this Court in Gobind Lal v. Ram Saran Lal AIR 1921 Pat. 435. There is, however, no difficulty in understanding that decision. The plaintiff in that case asked the Court to hold that the fair and equitable rent pavable by the tenants to him was Rs. 258-10-6. He admitted, however, that there was a rent payable by the tenants to him before the institution of the suit and that rent was Rs 94-6-0. In these circumstances the Court had to consider whether'' the suit was maintainable. This Court pointed out that the suit for the determination of fair and equitable rent proceeds on the assumption that no rent has hitherto-been paid by the tenant to the landlord and that the suit was confessedly a suit for the determination of fair and equitable rent, although it was admitted by him that a rent of Rs. 94-6-0 had hitherto been paid to him; and the conclusion at which this Court came was expressed in these words:

In my view, the action, so far as it is an action for the determination of fair and equitable rent, does not lie, because he is not claiming this fair and equitable rent in respect of future years but because he is claiming it in respect of the past years for which rent has already accrued due.

I find that the learned District Judge says in his judgment that he is unable to understand this passage; but with great respect, he would have had no difficulty in understanding it if he realized that it was admitted by the landlord in that case that the rent payable by them to the landlord before the institution of the suit was Rs. 94-6-0.

But in this case no such question arises.! The land is recorded in the Record-of-Rights as Kavil lagan and the Suit therefore proceeds on the assumption that not rent has hitherto been paid by the tenants. The plaintiffs are accordingly en-| titled to ask the Court to determine what| is the fair and equitable rent payable by; the tenants.

The next question is whether the learned Judge was right in giving the plaintiff damages for use and occupation of the[ land. I am of opinion that the view taken by him is perfectly correct. He concedes that a suit for rent for the past years cannot be maintained since no rent has been fixed for those years either by; contract or by the decree of a Court or in'' any other way.

But the defendants were; in actual occupation of the land and there is no reason why the defendants should not pay damages for the use and occupation of the land. But there is one difficulty.

Regarded as a suit for use and occupation,-the claim in respect of the year 1327 must be disallowed. The plaintiffs can only claim damages for three years aid it is conceded by Mr. Hasan Imam that he is not entitled to any decree in respect of the year 1327. Subject to this variation the appeal fails and must be dismissed with costs.

Fazl Ali, J.

I agree.