Madhu Munjari Chowdhurani vs Jhumar Babi

Banerjee, J.—In this appeal, which arises out of a suit for arrears of rent, the only question raised is whether the decree which had been duly executed, was any evidence at all in this case. The Lower Appellate Court has held that it is not evidence; and in support of this view it has referred to a Full Bench decision of this Court in the case of Madhusudan Shaw v. Brae ILR 16 Cal. 300. That case however did not decide the question that is now raised, as the fourth question that was referred to the Full Bench was considered unnecessary to be answered. In a later case however, the case of Bakshi v. Nizamuddi,L.R. 20 Cal. 505 there is a strong expression of opinion by one of the learned Judges, who decided that case that a decree such as the one now relied upon is evidence. In that opinion I concur; and I may here refer to section 51 of the Bengal Tenancy Act which provides that a tenant shall be presumed, until the contrary is shown, to hold at the same rent as in the last preceding year. The result then is that this case must go back to the Lower Appellate Court in order that that Court may determine the question as to the rate of rent after taking into consideration the effect to be attached to this decree as evidence.

Norris, J.

I would only add that I still hold the opinion which I expressed in the case of Bakshi v. NizamuddiL.R. 20 Cal. 505 and which has been referred to by my learned colleague in his judgment in this case, and I quite concur in this remand order.