Rambrich Lal and others vs Syed Mohammad Saheb

James, J.—This is an appeal under Cl. 10, Letters Patent, from decision of Khaja Mohammad. Noor, J. The appeal arises out of a suit for enhancement of rent of an occupancy raiyat under S. 32, Ben. Ten Act.

The defendant raiyats took the plea that the landlord had neglected to maintain irrigation and protective works in the manner agreed upon between the parties in 1319 Fs. and that the land had consequently deteriorated. The Subordinate Judge found that the plaintiff''s account of how he had maintained earthwork and irrigation facilities generally was correct, and his decision on that point was affirmed on appeal by the Additional District Judge. The full rate of enhancement admissible on a strict following of the Rules laid down under S. 32 Tenancy Act, without any reference to the provision of S.35, would have been five annas two pies in the rupee; but the Subordinate Judge considered that an enhancement at the rate of four annas in the rupee would be fair and equitable. On this point both parties appealed to the District Judge; but the decision of the Subordinate Judge was affirmed. Both parties came to the High. Court in second appeal, the tenants claiming that the enhancement allowed was excessive on the ground that works of irrigation and protection had been neglected, and the landlord claiming the full enhancement which would have been admissible on the ground of rise in prices, if no other considerations had arisen.

Khaja Noor, J., accepted as a finding of fact binding in second appeal the finding of the Courts below that irrigation works had been efficiently maintained and he found that the existing rent of the defendant-appellants was not high; but in view of the prevailing economic depression he reduced the rate of enhancement to three annas in the rupee.

Mr. Dasu Sinha on behalf of the appellants suggests that the examination of the question, of fact of whether the irrigation and protective works have been efficiently maintained has been prejudiced both in the High Court and in the Courts below by a misreading of the defendants'' written statement. The learned Judge of this Court has pointed out that the case of the defendants that the landlord neglected to do earthwork since 1314 was obviously false in view of the record of rights which was prepared in 1317. Mr. Dasu Sinha suggests that the case of the defendants was not that earthwork had been neglected since 1314, but that it had been neglected since 1319. The written statement, which says that there was an agreement on 18th August 1911, that these works should be maintained as was done before 1314, is indefinite regarding the exact period for which they are said to have been neglected; but the defendants'' own witnesses said that no earthwork had been done since 1314; and this question of fact was decided not on the pleading, but on consideration of the evidence of witnesses. The lower appellate Court found that it had not been proved that gilandazi had been neglected as alleged by the landlord and this finding; has necessarily been treated as a finding of fact binding on this Court in second appeal. The learned Additional District Judge remarked that neglect of gilandazi would be no ground for refusing enhancement under S. 30 (b), Ben. Ten. Act, but although he may then have stated the law in too broad terms, since any serious neglect of his duty to maintain necessary irrigation works would attract the provisions of S. 35, Ben. Ten. Act, that question did not arise in view of the findings of fact of both Courts that irrigation works had not been neglected.

After the hearing of the case had come to an end in the trial Court, when nothing remained, but to hear arguments, the defendants applied for the issue of a commission to examine the state of the works for protection and irrigation in this village. The learned Subordinate Judge rejected the application as made too late. The question was again raised in the High Court; but the learned Judge of this Court observed that this question had not been pressed before the lower appellate Court and that in any event the issue of a commission was a matter in the discretion of of the trial Court. Since the matter had not been pressed before the first appellate Court, the learned Judge of this Court did not, allow it to be agitated in second appeal but in any view of this matter it cannot be said that the discretion of the trial Court was wrongly exercised when the application for issue of commission was made at so late a stage.

Mr. Dasu Sinha on behalf of the appellants raises a new point in this Court suggesting that the suit affected more than one holding and that some land comprised in the holding was omitted in the schedule attached to the plaint. It does not appear that this point was raised in the pleading or at the trial Court. Para. 2 of the plaint expressly describes the land as constituting one holding this was not denied by the defendants'' pleading, and the parties were not at issue on this point when they went to trial. This is a question of fact which certainly cannot be raised at the present stage. The learned_ advocate desires now to tender in evidence an order of a Deputy Collector delivered after the disposal of this second appeal rejecting an application to register improvements said to have been made by the present plaintiff in this village; and also the judgment of a Munsif delivered in April last declining to allow any enhancement of rent in a suit instituted against another tenant of this village. Additional evidence of this kind can certainly not be taken at this stage and indeed it is difficult to sec how the opinion of the Deputy Collector on the question of whether earthwork made by the landlord should be registered as a new improvement could be treated as relevant, or how the judgment of a Munsif in a case in which another tenant was a defendant could properly affect the decision on the question of fact in the present case.

Finally, it is argued that the rent paid by the defendants is already so high that an enhancement of three annas in the rupee would not be fair; but the learned Judge of this Court has considered the question of whether the holding can bear this enhanced rent, and has come to the conclusion that the rate of the rent which is paid by the defendants is about the same as is being paid by an average tenant of the locality.

Having regard to the prevailing economic depression and to the provisions of S. 35, Ben. Ten. Act, he has reduced the enhancement which had been allowed by the lower Courts. The learned Judge of this Court has applied the provisions of S. 35, Ben. Ten. Act and there is no valid reason for interference with the decision at which he has arrived. I would dismiss this appeal with costs.

Macpherson, J.

I agree.

Varma, J.

I agree.