Sheikh Abdul Baqi and Others vs Kunja Behari Pandey and Others

Sultan Ahmed, J.—This appeal arises out of an application u/s 105 of the Bengal Tenancy Act, by which the landlords applied for a fair rant to be settled for the excess lands in possession of the defendants under sections 52 and 30 of the Bengal Tenancy Act. The application was disposed of in the first instance by the Settlement Officer. Then there was an appeal to the Special Judge who, by his judgment dated the 20th September 1917, disposed of the application.

As regards the holdings under the defendants Nos. 1, 2, 6 and 7, the Special Judge held that there could be no enhancement because they were holding the lands under kabuliyats executed by the defendants in favour of the landlords. As regards the holding of defendant No. 3 he held in favour of the applicant landlord and came to the conclusion that the landlord had made out a good case for enhancement u/s 30 of the Bengal Tenancy Act. As regards the holding of defendant No, 4 the Special Judge held that a case for enhancement u/s 52 of the Bengal Tenancy Act had been made out against him but that the application for enhancement u/s 30 had failed. As regards the holding of defendant No. 5 the learned Judge held that he was entitled to the benefit of Section 50 of the Bengal Tenancy Act.

The landlord has filed this appeal against the decision of the Special Judge. He firstly contends that the learned Judge''s decision with respect to the holding of defendant No. 5 is clearly wrong inasmuch as, while attempting to follow the decision of the Full Bench case of Pirthi Chand Lal Chowdhury v. Sheikh Basarat Ali 3 Ind. Cas. 449 : 13 C.W.N. 1149 : 10 C.L.J. 343 : 37 C. 30, he has held directly against that decision. That case was followed in this Court by my learned brother Mr. Justice Coutts and myself in the case of Jagdeo Narain Singh v. Bhagwan Mahto 54 Ind. Cas. 672 : 1 P.L.T. 27, where it was held that Section 115 of the Bengal Tenancy Act controls Section 50, Clause (2), under which an occupancy raiyat is precluded from relying upon the presumption raised in Section 50 after the publication of the Record of Rights when the landlord brings a suit for the enhancement of the rent. Therefore, it is clear that the defendant No. 5 was not entitled to the benefit of Section 50 of the Bengal Tenancy Act and the appeal as against him must, therefore, succeed.

It was urged on behalf of the appellant that as against the defendant No. 4 his application for enhancement ought to have been considered on the ground of general rise in prices. The Special Judge seems to have considered the register of the Collector prepared u/s 39 of the Bengal Tenancy Act in the case of the defendant No.'' 3, and there seems to be no reason why the same benefit should not be given to the landlord as against the defendant No. 4 as was given to him as against the defendant No, 3. In my opinion the landlord is entitled to an enhancement against the defendant No. 4 on the ground of rise in prises, which admittedly bad existed because the learned Judge himself gave him the benefit of that rise as against the defendant No. 3.

As regards the defendants Nos. 1, 2, 6 and 7, the learned Vakil for the appellant has submitted that the kabuliyats alleged to have been executed by them in favour of the landlord are not binding upon the landlord inasmuch as there is no evidence to show that the kabuliyats were, as a matter of fact, accepted by the landlord. The first Court found that these kabuliyats were executed by the defendants Nos. 1 2, 6 and 7 in the presence of the landlord, and judging from certain circumstances he came to the conclusion that these kabuliyats were accepted by the landlord. The learned Judge in appeal has not disturbed that finding and, therefore, I think, I would be justified in holding that the kabuliyats were not only executed by the defendants Nos. 1,2, 6 and 7 but were also accepted by the landlord, This is a finding of fact arrived at by the first Court and which has not been disturbed by the lower Appellate Court.

The result is that this appeal succeeds as against the defendants Nos. 4 and 5, and I declare that the landlord is entitled to the enhancement he claimed as against these two defendants, He has already bean declared to be entitled to enhancement u/s 30 as against the defendant No. 3 and u/s 52 as against the defendants Nos. 2 and 4, His application for enhancement, however, fails as against the defendants Nos. 1, 2, 6 and 7 u/s 30. As against defendants Nos. 1, 6 and 7 it also fails u/s 52. The result is that the appellant is entitled to his costs in this Court as well as in the two Courts below from the defendants Nos. 4 and 5, but he must pay the costs in this Court to defendants Nos. 1, 2, 6 and 7.

I direct that the case be sent back to the lower Appellate Court for a determination of the excess rent payable by the defendants Nos. 4 and 5 in addition to that by the defendant No. 3.