Mukha Rai and Others vs Nirmal Kumar and Others

Agarwala, J.—The landlords, who are the 16 annas proprietors, instituted 123 suits for enhancement of rent on the ground of rise in the price of staple food crops. The suits were tried together with the consent of parties. In some of the suits there were claims for rent, but in the present appeals we are not concerned with any question relating to that claim. The first Court declined to grant any enhancement on the ground that the rent had been enhanced in 1912 in case of some of the holdings and in 1913 in the case of the remainder, that the cost of cultivation had in the meanwhile increased and in particular that the cost of irrigation had gone up by eight annas in the rupee. In appeal by the landlords the learned District Judge has granted enhancement at the rate of two annas in the rupee. In 44 of the cases the defendants, have preferred the present second appeals. The plaintiffs filed cross-objections.

The substantial question, which has been argued by the learned Advocate for the appellants is that the learned District Judge has taken a wrong basis in estimating the maximum enhancement permissible, In view of the fact that the rent had been enhanced only 15 years prior to the institution of the present suit and therefore there were not two decennial periods since the last enhancement, the first Court took two periods of seven years each, one period of seven years immediately preceding the present suit and the other period of seven, years immediately preceding the first period, for the purpose of ascertaining the permissible maximum. On this basis it was found that the maximum enhancement permissible for dhanhar land was one anna eight pies per rupee and the maximum permissible for bhit land was ten pies per rupee. The Appellate Court however has come to its conclusion as to the maximum permissible rate by comparing the decennial period immediately preceding the institution of the suit with the decennial period immediately preceding the first mentioned decennial period. On this basis the maximum enhancement permissible for dhanhar land is four annas two pies in the rupee and the maximum enhancement permissible for bhit land is three annas nine pies in the rupee. The contention of the learned Advocate for the appellants is that this necessarily results in a higher maximum than is permissible under the law. The argument is that the second decennial period taken by the learned District Judge for comparison necessarily includes a part of the period which was taken into consideration in enhancing the rent in 1912 and 1913, so that the overlapping period has twice been taken into consideration. It is contended, in the words of clause (a), Section 32, Bengal Tenancy Act, that it is not "equitable and practicable" therefore to take for comparison the second decennial period which forms the basis of the District Judge''s decision. It appears that in the year 1910 the price of rice was 12 seers and 2 chataks for the rupee, in 1911 it was 12 seers and 12 chataks and in 1912 it was 11 seers and 13 chataks. In the subsequent years it fell to about 9 seers or less And rose in 1917 and 1918 to over 10 seers; in 1919 it dropped to 5 seers and 6 chataks. In the year 1910-1911 and 1912, therefore the price of rice was considerably lower than in the subsequent years and these three years, which form a part of the second decennial period taken by the District Judge for the purpose of comparison, overlap with the period which formed the basis of comparison in the enhancement suits of 1913. The low price of rice in the three overlapping years must therefore have had the effect of keeping the enhancement allowed in the suits of 1913 lower than it would otherwise have been. In this view of the matter it seems tome that the defendants have no real grievance because these overlapping years have been included in the decennial period which the District Judge has taken for comparison with the decennial period immediately preceding the present suits.

The next point urged by the learned Advocate for the appellants was that the learned District Judge should have applied to the present cases the decision in Bindeshwari Prasad v. Nankhu Mahton where it was held that where the holding has a lump rental for dhanhar and bhit lands and the landlord has failed to indicate any particular portion of the lump rental as derived from the class of land in respect of which the higher maximum rate of enhancement is allowable, no rate above the lower rate of enhancement can be said with certainty to be legal. But in that case what Macpherson, J., observed was:

Unless the landlord is able to distinguish, in lump rental the aggregate rent for bhit and the aggregate rent for dhanhar, it is impossible to predicate that an enhancement exceeding the lower of the two rates is not beyond the admissible maximum and therefore illegal unless conceivably where it is very slightly over the lesser maximum.

Now in the present case the proceedings appear to have proceeded on the basis that the landlord was either entitled to a flat rate of enhancement for each holding or none at all, and in any case, the maximum fixed by the learned District Judge, namely, four annas in the rupee is only slightly above the maximum of three annas nine pies which is the enhancement permissible in the present instance for bhit land. There is therefore No. substance in this point. The other point urged by the learned Advocate for the appellants is that in view of the increased costs of cultivation, particularly the increased cost of irrigation due to the increase in canal rates and the fact that enhancement was granted in 1913, the learned District Judge should have refused any further enhancement. All these were matters which the learned District Judge was required by Section 35 of the Act to take into consideration in determining whether the enhancement he proposed to grant was in the circumstances of the case unfair or inequitable. He has taken them into consideration and on account of them he has granted enhancement at only half the maximum rate.<

It was next contended that allowance should have been made for the fact that sand has been deposited on some of the holdings. It has been found as a fact by the lower Appellate Court that there has been no deterioration in the productive powers of the land although in some portions of some of the holdings sand has been deposited. In the absence of evidence to show that the amount of sand deposited has adversely affected the productive powers of the land, the defendants are not entitled to any relief on this ground. The result therefore is that the appeals fail and are dismissed with costs. The cross-objections are also dismissed with costs.