Rameshwar Prasad Singh and others vs Bihari Kahar and others

James, J.—These are ninety-five appeals from the decision of the Subordinate Judge of Monghyr affirming the decision of the Munsif of Jamui in suits for enhancement of rent under S. 32, Bengal Tenancy Act. The rents of the defendants were settled under S. 112, Tenancy Act, in or about 1912-1913. The Munsif considering that he was debarred from considering the prices before the time when rent was settled, and finding that there were only fifteen or sixteen years between the date of settlement and the period of suit, thought that it was impracticable to take two decennial periods as is required by the provisions of S. 32, and he therefore took two periods of eight years each: 1914-1921 and 1922-1929, for the purpose of making comparison of prices.

Mr. S.M. Mullick argues that the Munsif was required by the Act to take decennial periods and that the first of the two decennial periods should have been the period before the time of settlement. Mr. S.N. Rai on behalf of the respondents argues that sub-S. (c) of S. 32, gives absolute discretion to the Court to substitute shorter periods for the decennial periods prescribed if in the opinion of the Court it is not practicable to take the decennial period into consideration. Now there can be no doubt on the question of what is the proper method of applying the provisions of S. 32, when the Court is dealing with rent which was settled in 1913. The first of the decennial periods to be taken should be the years 1903 to 1912; and the second the decennial period immediately preceding the date of the suit. It cannot be said to be not practicable to take into consideration prices current during these periods, since the lists, of prices have been prepared and published under S. 39 (5) Bengal Tenancy Act, since 1887. Indeed, the Munsif has not found that it is not practicable to take the earlier period into consideration, but that it would not be equitable. I observe that the reason which the Munsif gives for not taking the earlier period into consideration is the very reason for which it must be taken into consideration. The Munsif would not consider prices of the decennial period before 1913 for this reason, that when the rent was settled in 1913 the prices prevailing during that period mast have been taken into consideration. Mr. S.N. Rai suggests that the trial Court has an absolute discretion under sub-S. (c) of S. 32, but if the Munsif dealing with a rent settled in 1912 had in considering the rise in prices taken as his first decennial period the years 1888 to 1897, I am sure that he would have argued, perfectly correctly, that such a course would not be justified, and that the action of the Munsif amounted to an error in law. In these cases the Munsif appears to have completely misunderstood the principles embodied in S. 32. If the question of what amount of enhancement would be fair and equitable has to be considered, as indeed it must be considered, the Court should first ascertain what enhancement would be admissible on a strict reading of S. 32, Bengal Tenancy Act; and should then proceed to consider whether such an enhancement would be fair and equitable.

The comparison of the decennial period immediately preceding the settlement of these rents with the decennial period immediately preceding the suit would render admissible a considerably larger enhancement than that allowed by the Munsif. In the present case, the existing rents cannot be regarded as rack-rents, since they were settled as fair rents under S. 112, Bengal Tenancy Act, in 1912. If the conditions of rising prices which have on the whole prevailed since the Permanent Settlement had been still prevailing I would have said that these rents were liable to enhancement up to the amount admissible on the strictest reading of S. 32, Bengal Tenancy Act. But the argument of this case has been largly based on the published lists of prevailing prices; and I find it impossible to ignore the fact which is thrust upon ahybody examining the lists, that prices in late years have considerably fallen. I do not consider that any enhancement could be treated as fair if it exceeded one anna in the rupee for bhit lands or two annas in the rupee for dhanbar lands.

To this extent the appeals are allowed. The decree of the lower appellate Court will be set aside and the decree of the Munsif will be modified to this extent that the enhancement allowed would be one anna in the rupee for bhit lands and two annas in the rupee for dhanbar lands. The plaintiff-appellant is entitled to his costs. In view of the large number of analogous appeals which have been consolidated into two groups for the purpose of hearing, the hearing fee in each case may be reduced to Rs. 4 in the High Court and Rs. 3 in the lower appellate Court.