Rameshwardhari Singh and Others vs Mahabir Singh and Others

Wort, J.—These appeals arise out of actions for enhancement of rent. The plaintiff is the appellant before the Court and his ground of appeal is that the learned District Judge has disallowed the maximum amount of enhancement to which he is entitled u/s 30 Sub-section (b) of the Bengal Tenancy Act on principles which are erroneous. The maximum amount which the Courts below have found in this case is 3 annas 2 pies for paddy lands, and 4 annas 5 pies for uplands.

The ground upon which the learned District Judge has disallowed a part of this maximum enhancement and only allowed 2 annas in the rupee is that the principle underlying the section entitling the landlord to an enhancement in the case where there has been a rise in the average local prices of staple food crops during the currency of the present rent is, to use the learned Judge''s language, that the raiyat is better off. I find I cannot agree with the principle which the learned Judge lays down upon which he bases his judgment and I do not propose to repeat the language of the Divisional Bench of this Court in the case of Kamala Prasad Singh Vs. Bankey Prasad Singh and Others, being judgments in appeals from the same District Judge; but it is pointed out in the judgment of Mr. Justice James there that the principle which the learned Judge has applied in this case is erroneous, that the reason for allowing the enhancement under the Bengal Tenancy Act was by reason of the fact that the basic principle of rent in this country is that "the ruling power was entitled to a certain proportion of the produce of every bigha of land demandable in money or kind according to the local custom, unless he transfers his right thereto for a term of years or in perpetuity."

The learned Judge is there quoting Regulation XIX of 1793. Now the learned Judge in this case having laid down the principle goes on to point out that in these cases the price of goods which the raiyat has to buy with the money which he obtains from the sale of his surplus crops, for example, cloth, oil, spices, agricultural instruments (I imagine the learned Judge used the expression agricultural implements) has risen to the same extent or to a greater extant than the price of rice and wheat and the raiyat will ordinarily be worse off. That is the reason for which, exercising his discretion u/s 35, he has disallowed the full amount. It is perfectly plain that if a principle of that kind is to be applied to cases of enhancement, then there never could be an enhancement on the ground provided by 30, Sub-section (b) of the Bengal Tenancy Act. The very provision of Section 30, Sub-section (b) would show that the cost of living itself had risen in other words, the very reason for allowing an enhancement would be the same reason for disallowing it which, of course would produce absurd results. It is quite clear, on a proper construction of Section 35, as is pointed out in the decision of this Court to which I have referred, that when the section uses the expression, "which is under the circumstances of the case unfair or inequitable" the circumstances referred to are circumstances of the particular case.

In my judgment the grounds upon which the learned Distract Judge has come to the conclusion that in this case only 2 annas in the rupee should be allowed are wholly untenable and his judgment to that extent must be set aside and there must be an enhancement at the rates which he found to be the maximum amounts, that is to say, 3 annas 2 pies for paddy lands and 4 annas 5 pies for uplands.

There is a cross-objection by the respondents in this appeal. Their contention was that in any event no enhancement could be allowed in these cases as there had been an enhancement of the rent within 15 years. What appears to be the facts of this case in regard to this point are these: that at some date since the publication of the Record of Rights the landlord has realised from the tenants a sum amounting to 9 pies in the rupee described as neg and dak cess. In this connection the learned Counsel on behalf of the respondents relies upon the case of Watson & Co. v. Sree Kristo Bhumiok 21 Cal. 132 where it was decided that where dak-cess is claimed under a contract by which rent was payable, the dak-cess together with the rent proper must be considered to be the rent lawfully payable; and it is argued from that decision that in this case the neg and dak cess must be considered as part of the rent because they were lawfully payable. That argument appears to me to be begging the question in the same way, as it is suggested that the learned District Judge has begged the question by stating that this neg and dak-cess were illegal ubwabs and, therefore, not lawfully recoverable and consequently not ''rent'' within the meaning of Section 30(b) of the Bengal Tenancy Act.

Now the findings of the Courts below seem to me to conclude this matter. It is first established beyond doubt that this sum of 9 pies in the rupee was realised as neg and dak-cess and not as rent, so called, and as the learned District Judge points out the defendants'' case was that this money was recovered as cess and not as enhancement of the rent.

The case in Sri Ram Chandra Naik Kali Vs. Rambrich Singh and Others, discussed this question and in circumstances which were almost precisely similar to the cases which are before me. But, as I have already stated, this point seems to me to be concluded by the decisions of the Courts below, namely, that the amount was recovered from the tenants as cess and not as enhancement of the rent, and I would notice particularly in this connection that there was a finding of the trial Court that this payment was made by he tenants from a certain date and unwillingly. The suggestion made by the learned Counsel on behalf of the respondents in this case was that there was a definite contract as between the landlord and the tenants to enhance the rent. The finding of the trial Court to a very large extent upon which the Appellate Court seems to rely is, as I have already pointed out, that this amount was paid by the tenants unwillingly. This is diametrically opposed to any suggestion that there was a contract between the parties to enhance the rent. It is only on such an assumption as that, namely, that there was an agreement between the parties to enhance the rent, that the respondents-tenants in these cases could possibly succeed. I have stated that the finding on the facts is against the contention of the respondents in this case, and, in my judgment, when once it is found that these amounts were paid as neg and dak-cess, the provisions of Section 74 of the Bengal Tenancy Act are attracted. Section 74, Sub-section (1) provides-

All impositions upon tenants under the denomination of abwabr mathat or other like appellations, in addition to the actual rent, shall be illegal, and all stipulations and reservations is for the payment of such shall be void.

In these circumstances the position is that these sums are irrecoverable, from the tenants, and as decided by the Court in Sri Ram Chandra Naik Kali Vs. Rambrich Singh and Others, first the payment of such illegal amounts by the tenants is no bar to a suit for the enhancement of rent, and, secondly, that when such enhancement is claimed it is to be claimed upon the jama as recorded in the survey Record of Rights. In my judgment the cross objection fails.

The result is that the appeals must be allowed, the judgment of the learned District Judge set aside and the judgment and decree of the Munsif restored.