Ram Lal Mahton vs Musammat Bibi Rokaiyi

James, J.—This appeal arises out of a suit for enhancement of the defendants rent under Sections 31 and 32 of the Bengal Tenancy Act. The Munsif of the First Court at Patna enhanced the rent from Rs. 2-10-0 per bigha to eight rupees u/s 31 and then enhanced that rent by 2 1/2 annas in the rupee u/s 32. His decision was affirmed on appeal by the Subordinate Judge.

Mr. B.C. Sinha on behalf of the appellant argues in the first place that the lower Court ought to have held that his rent was not liable to enhancement. It appears that a compromise into which he entered in, 1901 indicates that at that time he paid the same rent as he is paying now and that rent had been paid at this rate for some period before 1901. Mr. B.C. Sinha relies on the presumption u/s 50(2) of the Bengal Tenancy Act; but the tenancy has been described in the Record of-Rights which was published in 1911, and by virtue, of the provisions of Section 115 of the Act the presumption under 50(2) no longer applies.

Mr. B.C. Sinha argues in. the second place that there is no prevailing rate in the village, and that the manner in which the commissioner appointed by the Court endeavoured to arrive at such a rate was erroneous. The Commissioner reported that twenty-two raiyats were paying rent at the rate of about eight rupees a bigha whereas twenty paid seven rupees, seventeen paid below seven rupees and thirty-two paid above eight rupees. The schedule shows the rate paid by 91 raiyats who held land of the same quality with the same advantages; from which it appears that not one raiyat out of the 91 actually pays rent at the rate of eight rupees though twenty-two may have paid at a rate a little above or below that sum. The Commissioner himself indeed reports that there is no such thing as rates of rent for particular classes of lands or for any kind of land; and he shows by his schedule that the 91 raiyats whom he has selected are all paying rent at different rates.

The learned Subordinate Judge thought that the Commissioner, in doing this, was ascertaining what was the rent paid by the majority of the tenants for land similar in description with similar advantages, as explained by Mitter, J. in Shadhoo Singh v. Ramnoograha Lall 9 W.R. 83 to which reference was made in Brij Behari Singh v. Sheo Sanker Jha 39 Ind. Cas. 85 : 2 P.L.J. 124 : 1 P.L.W. 434 : (1917) Pat. 108. But what is meant by the rent paid by the majority of the tenants for lands of similar description with similar advantages is a definite known rate paid by the majority of the tenants of the village and recognised as the prevailing rate in that village. This matter was made clear without any ambiguity by the judgment of the learned Chief Justice of this Court in Sri Radha Kishunji Vs. Haricharan Ahir and Others, . The prevailing rate does not mean an average rate; and the provisions of Section 31-A cannot be applied to ascertain the so-called prevailing rate unless that section has been extended to the area in question. It is clear here that unless the artificial meaning which is prescribed by Section 31A of the Bengal Tenancy Act is in some form or other applied, nothing resembling a prevailing rate can be ascertained in this village. The Courts below should accordingly have found that there was no prevailing rate in the village, and that the provisions of Section 31 of the Bengal Tenancy Act could not be applied to enhance the rent of the defendant.

The appeal is accordingly allowed to this extent that the rent of the defendant will be enhanced only by 2 1/2 annas in the rupee u/s 30(6) of the Bengal Tenancy Act and the claim to enhancement u/s 30(a) will be disallowed. Each party will bear his own costs throughout.

Chatterji, J.

I agree