Mt. Mana Kuer and Another vs Ram Naresh Rai and Others

Jwala Prasad, J.—These are twelve second appeals. The corresponding numbers of the original rent suits and the first rent appeals in the Court below are given in the heading of this judgment.

The plaintiffs are landlords of 16 annas in Mouza Pharaura, Pergana Peru Tauzi No. 4707, having purchased the milkiat interest under a registered deed fo sale, dated 18th December 1922 (corresponding so 4th Pous, 1330). In all these cases the plaintiffs claimed an enhancement of rent u/s 30 (b), Ben. Ten. Act, and except in two of them, namely, Second Appeals Nos. 373 and 376 (corresponding to Rent Suits Nos. 165 and 162 of 1926 and first Rent Appeals Nos. 101 and 100 of 1927) they also claimed an enhancement u/s 52 (a) of the Act,

The defendants-respondents are tenants under the plaintiffs having qaimi status in the land held by them. They resisted the plaintiffs claim and disputed their right to enhance the rental under any of the aforesaid sections.

The Munsif allowed enhancement at the rate of four annas per rupee u/s 30(b) and at the rate of Rs. 3 per bigha for the excess land u/s 52(a), Ben. Ten. Act. On appeal by the defendants the learned District Judge of Shahabad reduced the enhancement u/s 30(b) to one anna in the rupee and altogether disallowed enhancement u/s 52(a) for the excess land. Against the decision of the District Judge the plaintiff landlords have come up to this Court in second appeal.

The defendants-respondents only in four of the second appeals have entered appearance and contested the appeal. In the other appeals they have not entered appearance.

The appellants contend that the District Judge is wrong in law in setting aside the decision of the Munsif. They rely upon the recent decisions of this Court in which the views as taken by the learned District Judge of Sections 30(b) and 52(a) have been set aside.

Now both the Courts below have held that prices of staple crops had risen and according to the Munsif the average came to four annas per rupee and according to the District Judge it came to four annas four pies in the rupee for up land and two annas ten pies in the rupee for low land.

The learned District Judge however did not allow the admissible enhancement of four annas four pies, or four annas as allowed by the Munsif, but reduced it to one anna in the rupee upon the grounds stated by him to be (1) that the lands of the village are of very poor quality and that some other lands near about have in recent years been sold from Rs. 20 to Rs. 40 a bigha and u/s 35 the capacity of the land must be one of the numerous factors which must enter into a consideration of what fair rent should be allowed; (2) the period of years on which calculation u/s 32, Ben. Ten. Act, is based includes the years of the war and the post-war economic disturbance when prices were very unsettled and (3) that the fact that the prices of all the commodities which a tenant has to purchase have increased not less than the prices of food crops must also be taken into consideration. By this Court each and all of these grounds were held to be untenable for disallowing or reducing an enhancement u/s 30(b) in several cases dealt with by different Judges of this Court not less than six in number. My own view has been the same as that of the other learned Judges but I do not find my decision to have been reported. I would just quote the decisions in those cases as repudiating each and all of the grounds given by the learned District Judge for reducing the enhancement u/s 30(b) to one anna in the rupee.

(1) Das and Fazl Ali, JJ., in the case of Nirmal Kumar and Another Vs. Gauri Prasad Singh, held that

In a suit for enhancement of rent u/s 30(b), Ben. Ten. Act, the mere fact that the lands in suit were of bad quality is immaterial.

and that

Section 35, Ben. Ten. Act does not give the Courts unrestricted discretion to deprive the landlords of what is justly and properly due to them; and though a Court may be generous to the tenant it must at the same time be just to the landlord.

(2) Das and James, JJ., in the case of Kamala Prasad Singh Vs. Bankey Prasad Singh and Others, held that

It is unsound to hold that Section 30(b) applies only where the rise in prices of staple food crops benefits the raiyat and enables him to pay a higher rent, and that it does not apply where the price of cloth, oil etc., has risen. Section 30(b), Ben. Ten. Act, is not based on economic principles but on the legal and historical principle that the landlord is entitled to a certain share of the produce of the holding. 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, other wise the tenant is liable to pay the enhancement which would be admissible under the rules laid down by Section 32.

(3) Wort, J., in the case of Rameshwardhari Singh and Others Vs. Mahabir Singh and Others, held that

It is erroneous to think that the principle underlying Section 30 (b), Ben. Ten. Act entitling the landlord to an enhancement of rent is that the raiyat is better off, and consequently a Court acts improperly u/s 35, Ben. Ten. Act in disallowing or reducing the proper enhanced rent on the ground that the price of the goods which the raiyat has to buy with the money which he obtains from the sale of his surplus crops, for example, cloth, oil, spices, agricultural implements, has risen to the same extent or to a greater extent then the price of rice and wheat and the raiyat will ordinarily be worse off.

(4) Das, J., in the case of Muhammad Abdul Hasnat Vs. Rambilas Singh and Others, held that

It is erroneous to hold that Section 30 (b), Ben. Ten. Act is based on the assumption of the Manchester School of Economics that a rise in the price of agricultural produce necessarily benefits the tenant and a Court acts illegally in. dismissing the claim for enhancement u/s 30 (b) of the Act on the ground that the Indian raiyat has not benefited by the rise in prices of food crops.

(5) Ross and Kulwant Sahay, JJ., in the case of Musammat Bibi Sayedatulnissa and Others Vs. Amrit Mahto and Others, held that

When the rise in the price of staple food crops has been established, there ought, in the absence of special circumstances, to be a corresponding increase in the rent. Section 35, Ben. Ten. Act, does not justify the broad proposition that the only way of determining the fairness of a rent is to compare the present incidence of the rent with the average outturn of the land.

As observed above, I am in full accord with the aforesaid decisions and sitting singly I am bound to follow them. I therefore set aside the decision of the learned District Judge u/s 30 (b), Ben. Ten. Act, and hold that the plaintiff landlord appellants are ordinarily entitled in these cases to the maximum enhancement of four annas four pies in the rupee for up land and two annas ten pies in the rupee for low land. Considering however the circumstances of the case the learned advocate on behalf of the appellants and the learned advocate on behalf of the respondents who have entered appearance agree that the enhancement be at the rate of two annas six pies in the rupee. I would allow this enhancement in all the cases.

As regards the claim u/s 52 (a), Ben. Ten. Act, the Munsif held that from the khatian it appears that more land is in possession of the defendants than that shown in the jamabandi, and the defendants admit that they are in possession of the land as shown in the khatian. He also held that the plaintiffs proved the standard of measurement to be 5 1/2 cubits and the defendants failed to prove that the standard of measurement is 11 cubits as alleged by them. Relying on teskhana jamabandi (Ex. l) the Munsif held that they are rates of rent and that the realisation is made at the rate shown in Ex. 1. He also relied upon D.W. 1 and P.W. 3 that the rate of rent for this land is Rs. 3 per bigha. Thus, the Munsif held that the defendants are in possession of more land than that for which they pay rent, and the rate of rent varies from Rs. 2-8-0 to Rs. 7 per bigha; but relying upon the defendants own admission he allowed rent for the excess area as shown in the plaint at the rate of Rs. 3 per bigha.

The learned District Judge accepted the plaintiffs evidence that a luggi always used in the village is 5-1/2 Cubits, but he says that it does not prove that the areas entered in the jamabandi are correct and the plaintiffs should have shown that 5-1/2 hatha go to make up a luggi and a hath accurately consists of 18 inches. The evidence shows that a hath is measured from the elbow to the tip of the finger of some individual in the village.

Upon this finding the learned District Judge holds that the fact that the area found in the cadastral survey is less than that shown in the jamabandi does not necessarily show that the raiyats have taken possession of the additional lands unless the entries in the jamabandi were shown to be accurate at the time they were made. Accordingly he disallowed the enhancement altogether u/s 52 (a).

Now in the case of Lalla Sheo Kumar Lal v. Ramphal Dass 53 Ind.Cas. 959 it was held that the landlord need not prove the particular land as being the land held by the tenant in excess of the area originally held by him provided he shows that the rent is paid according to the area whether that area is arrived at in the beginning by measurement or not. The subsequent detection of any change in the area would entail a corresponding alteration in the rental whether it be a reduction in favour of the tenant or enhancement in favour of the landlord. In the case of Sib Sahai Lal and Others Vs. Bijai Chand Mahtab, Mullick, Ag. C.J., and Kulwant Sahay, J., held that where tenancy is created not with reference to any boundaries or a specific block otherwise identifiable, but for a certain area at a certain rental, the area is of the essence of the contract and any subsequent excess found upon measurement renders the raiyat liable to pay additional rent u/s 52 (a), Ben. Ten. Act.

Similarly, in the case of Maharaia Kesho Prasad Singh v. Tribhuan [1917] 2 Pat. L.J. 276, Mullick and Jwala Prasad, JJ., held that in a proceeding for enhancement of rent u/s 52, Ben. Ten. Act, 1885, if the landlord shows that, by a contract between himself and the tenants, it was agreed that a certain rental at a certain rate per bigha was to be paid for a certain area, then he is entitled to an enhancement of the rent even if that area was agreed upon without any actual measurement or even though there is no practice of measurement within the pergana within which the land is situated. It is not incumbent upon the landlord to prove that there was an actual measurement or that there is a practice of measurement.

In the case of Raja Jogendra Kishore Roy Choudhury Vs. Sheikh Aktar and Others, , it was held that in a suit for excess rent for excess area in respect of a tenancy the finding that there is nothing to show that at the inception of the tenancy rent was settled or that it was undertood that rent should be settled by assessment on area, is not sufficient for the disposal of the controversy between the parties. The landlord''s case does not depend on his being able to prove what had happened at the inception of the tenancy. If the landlord can show that since the creation of the tenancy rent had been assessed, and that when rent was last assessed the assessment was on the basis of a certain area and that the defendants are in possession of land on which no rent was assessed at the time, then the landlord is entitled to increase of rent. The Court should come to a finding whether or not there has ever been assessment of rent on the basis of area and, if so, whether that area is less than the land found to be held by the tenant at the time of the suit.

In the present case the learned District Judge has not disposed of the finding of the Munsif that the old jamabandi shows that the tenants are in possession of more area than that found by the cadastral survey and entered in the khatian and that the standard of measurement was 5-1/2 cubits and further that the teiskhana jamabandhi shows that there are rates of rent and the realization is made at the rate shown in the jamabandi. Still more D.W. 1 admitted that the rate of rent is Rs. 3 per bigha. All these justified the finding of the Munsif that the settlements were made according to area and the total rental payable by a tenant was arrived at by calculation of the rates of different lands settled with him. Besides that, the landlords and the tenants in this Court were called upon to produce counterfoil and receipt books. These counterfoil receipt books have been produced and show that the areas and the rentals are mentioned therein. All this evidence combined together supports the landlords case that the defendants are in possession of more land than that for which they pay rent. The taiskhana jamabandi (Ex. 1) shows that the rate of rent varies from Rs. 2-8-0 to Rs. 7 per bigha and that the lands at various rates were settled with the tenants. The Munsif gave enhancement at the rate of Rs. 3 per bigha. I would reduce it to Rs. 2-8-0 per bigha, the lowest rate shown in the jamabandi.

The result is that the appeal is decreed as aforesaid. The plaintiffs are allowed enhancement u/s 30 (b) at the rate of two annas six pies in the rupee in all these cases and additional rent at the rate of Rs. 2-8-0 per bigha for the excess area found in their possession over the jamabandi area, except in two cases.

The plaintiffs would get their costs of these appeals from the contesting respondents in Second Appeals Nos. 365, 371, 373 and 375 of 1928. In the other cases in which the respondents have not appeared the plaintiffs would not get any costs.