Pahwari Rai and Others vs Janki Kuer

Ross, J.—Second Appeal No. 153 of 1926 arises out of title suit No. 59 of 1923 and Second Appeal No. 154 of 1926 arises out of title suit No. 58 of 1923. In title suit No. 58 the plaintiff sought to have rent assessed on excess areas u/s 52, Ben. Ten. Act and in title suit No. 59 he claimed that a fair and equitable rent should be fixed for kabil lagan lands. In the former suit the rate claimed was Rs. 7 and in the latter Rs. 5 a bigha. The Court of appeal below has assessed the rent at Rs. 5 a bigha in both cases and has awarded rent for 1328 and 1329, the years immediately preceding the year in which the suit was brought.

Two points are taken in second appeal. The first is that no decree should have been given for back rent. This point was not pressed so far as suit No. 58 is concerned, because, it was decided in Jagannath Majhi v. Juman Ali [1902] 29 Cal. 247 that there was nothing to prevent a landlord from claiming back rent for any additional area u/s 52. With regard to the kabil lagan lands, two decisions were referred to: Gobind Lal v. Ram Saran AIR 1921 Pat. 435 and Partap Mahton and Others Vs. Mt. Wazir-unnissa and Another, as authorities for the view that no decree can be passed for back rents when a fair and equitable rent is assessed on kabil lagan lands. The earlier of these decisions has been recently explained by Das, J., in Jai Narayan Munder and Others Vs. Kuleswar Singh, where it was held that that decision was no authority for this view; the suit was in facts suit for enhancement of an existing rent but was framed as a suit for the ascertainment of fair and equitable rent and was therefore not maintainable in the form. In the decision damages for use and occupation were allowed. I prefer to follow this last decision (4) to that reported in Jai Narayan Munder and Others Vs. Kuleswar Singh, which seems to lay down a different rule.

The second point is as to the rate of rent. The Subordinate Judge has allowed rent at the rate of Re. 1 per bigha for the excess and the kabil lagan lands. This rate was allowed without considering the evidence. The District Judge dealt with the evidence and came to the conclusion that the proper rate was Rs. 5 a bigha in both cases.

It is contended on behalf of the appellants that as the plaintiff himself rated the excess lands higher than the kabil lagan lands the same rate should not have beeia fixed for both. The fact that the plaintiff claimed Rs. 7 a bigha for the excess area and Rs. 5 a bigha for the kabil lagan lands ia no ground for holding that the decision awarding Rs. 5 for the kabil lagan lands is wrong. This is a question of fact.

The result is that the decree so far as it is decree for back rents will be a decree for damages for use and occupation and not a decree for rent. In other respects the decree of the lower appellate Court is affirmed and the appeals are dismissed with costs.