Kashi Sinha and others vs Ganga Singh and others

James, J.—This appeal arises out of a suit for recovery of arrears of rent and for enhancement of rent under S. 32, Ben. Ten. Act. The plaintiff claimed rent at an annual rate of Rs. 16-13-0, but the defendants contended that their rent was something very much less, relying upon an entry in the record of rights which was published in 1898. The estate within which this land lies was partitioned in 1905, on the conclusion of proceedings which had been pending for about 15 years. In 1902 according to the plaintiff the defendants, who were parties to the partition, obtained settlement of rent for this land under S. 90, Estates Partition Act of 1876. The trial Court held that the defendants were bound by these proceedings; and this finding was affirmed on appeal by the District Judge. The trial Court refused enhancement on the ground that the land was an orchard but the lower appellate Court allowed enhancement at the rate of two annas in the rupee. The defendants appeal from that decision, objecting in the first place that the finding on the question of the amount of the rent payable is based on inadmissible evidence; and, secondly, that no enhancement ought in any event to have been allowed. A cross-objection claiming higher enhancement has been preferred by the plaintiff.

Mr. S.N. Ray on behalf of the appellants argues in the first place that the records of the batwara proceedings ought not to have been used to rebut the entry in the record of rights. He relies upon the decision of Sir Lawrence Jenkins in Nand Lal Pathak v. Chanurpat Das, (1913) 18 IC 143; but in that case the document used in evidence was a mere batwara khasra, whereas in the present case this khasra itself constitutes the record of the settlement of rent made by the Deputy Collector under S. 90 of Act 8 of 1876. This was an act to which, the plaintiff and the defendants were parties and the learned District Judge has correctly remarked that the defendants were bound by it. The question of whether the entry in the record of rights was correct or not does not arise, because it appears that this settlement of rent was made on 5th March 1902, six years after the, record of rights had been published.

A point, which apparently escaped; the notice of the lower Courts, cannot! be ignored, that having found that the settlement of rent was made under S. 90 of Act 8 of 1876, we have to determine whether any enhancement ought to be allowed under S. 32, Ben. Ten. Act. This point, that a settlement under S. 90 is a settlement in perpetuity, and that therefore the rent so settled is not liable to enhancement under S. 32, Ben. Ten. Act, was not taken by the defendants in their memorandum of appeal, nor in the Courts below, for the reason that they were so busily engaged in attacking the correctness of the finding that their rent had actually been settled under S. 90, that they omitted to take the alternative pleading which might have been treated as in some way an admission that they were bound to pay the existing rent as claimed by the landlord. But whether this ground was taken in the memorandum of appeal or not, it is impossible for me to ignore it; and the learned advocate for the respondents has been unable to cite any authority which would warrant the assumption that when S. 90 of Act 8 of 1876 speaks of front fixed in perpetuity it means something other than rent which is not liable to enhancement.

I therefore consider that this appeal must be allowed to this extent, that the decree of the lower appellate Court enhancing the appellant''s rent must be set aside though in other respects that decree must be affirmed. Each party may bear his own costs in this Court; and the decree of the lower appellate Court will be amended by striking out SO such of the costs allowed to the plaintiff as is to be attributed to the prayer for partition. The cross-objection is dismissed.