Sri Ram Chandra Naik Kali vs Rambrich Singh and Others

James, J.—These appeals arise out or three suits for enhancement of rent u/s 30(b), Ben. Ten Act, and for increase of rent on the ground of increase of area u/s 52(a)(i). Before the preparation of the Record-of-Eights, the plaintiff landlords collected in addition to their rent an abwab of half an anna in the rupee which was described in their papers as neg or masum. When the Be-cord-of-Eights was prepared, the revenue officer, recording the legal rent payable, entered in the khatian the ground rent, disallowing the abwab; but the plaintiff s continued to collect rent at the old rate.

The defendants to these suits contended that this collection of rent at the old rate implied a formal enhancement of rent by contract within the meaning of Section 29, Ben. Ten. Actd; and as these suits were instituted within fifteen years of the time of the preparation of the Record-of-Bights, they claimed that by the provisions of Section 37 of the Act they were not liable to any enhancement of rent. The Munsif of Sasaram treated the rents paid since the preparation of the Record-of-Eights as consisting of ground rent (asl) and abwab and holding that there has been no legal enhancement by contract, he gave a decree for enhancement of rent u/s 30(b), on the basis of the rental shown in the Record-of-Eights, and at a rate considerably below the rate which would be admissible u/s 32, Ben. Ten. Act. On appeal the learned Subordinate Judge of Arrah held that the fact that within the last fifteen years the landlords had realized rent at a higher rule than that shown in the Record-of-Eights must be treated as, implying that the rents had been enhanced by contract, so that the landlords'' claim based on the ground of rise in prices-must be disallowed u/s 37, Ben. Ten. Act. The plaintiffs appeal from this portion of the order of the learned Subordinate Judge.

Mr. Parmeshwar Dayal on behalf of the plaintiff-appellants argues that there has been no enhancement by contract within fifteen years of the institution of the suits. Both the Courts below have'' found that rent was collected after the preparation of the Record-of-Rights at the same rates as before it; and that before-the Record-of-Eights was prepared, this-rent included neg or masum. Mr. Parmeshwar Dayal argues that after the final publication of the Record-of-Bights, this rent includes neg just as it did before. The learned Subordinate Judge has declined to consider the rent collected since the final publication as a jama arrived are by consolidation of abwab, on the ground that the rent receipts given since that date do not show abwabs; but Mr. Parmeshwar Dayal points out that the rent receipts never at any time showed abwabs separately, and there has actually been no variation in the total amount received by the landlords since the year 1897 Although the actual amount payable by the raiyats has not changed since 1897, the learned Subordinate Judge observed that the rent must be regarded as having been enhanced after the preparation of the Record-of-Rights, because it is higher than that shown in the khatian. But if the jama paid by the raiyats before 1912? consisted of ground rent and neg and the same jama was paid after 1912, it is manifest that this Jama consists also of ground rent and neg, and there has been actually no change in the amount of the legal rent payable.

Any agreement to consolidate abwabs with the rent would be invalid u/s 74, Ben.-Ten. Act: and an illegal or invalid contract to pay rent at a higher rate does not come with in the provisions of Section 37 to operate as a j bar to the institution of the suit for enhancement of rent: Budhan Mahto v. Mt. Wazihunnisa Begum [1918] 4 Pat. L.J. 106, Therefore, whether the consolidation of neg with the ground rent or as was made before or after the final publication of the Record-of-Eights, it would not operate as a bar for a suit; for enhancement of rent. The illegal enhancement or consolidation must be ignored when the rent is being enhanced, that is to say, the enhancement must be on the rent legally payable, as attested in-the-Record-of-Bights. In this respect the procedure of the learned Munsif was correct.

The second ground on which the landlords claimed increase of rent was that the defendants were holding more land than they were paying rent for. The Courts below found as a fact that rents were originally assessed on the reputed areas of the defendants'' holdings. The defendants endeavoured to show that the difference in area, by which they now appear to hold more land, was due to a difference in the length of the rod on which the area of the local bigha depends; but on this point the findings of fact were against them; and increase of rent on the increased area was allowed by the lower Courts. A cross objection against this increase of rent has been preferred by the tenant-defendants. It is argued that the increase of rent is not admissible because it has not been shown that the area which the tenants hold has actually increased, or that the areas shown in the landlords'' old jamabandis were ascertained by measurement, or by a rod of the same length as has been used in the calculation of the modern areas.

The present area which is shown in the Record-of-Bights in acres has been reduced to a bigha calculated with a rod of 3� cubits; that is to say, of 1225 sq. yards. The tenants contended that the local bigha of the village was measured with a rod of 4 cubits in length, that is say that the bigha had as area of 1600 sq. yards. The Courts have found that the local bigha was measured with a rod of 3� cubits but it is argued on behalf of the cross-objectors that this finding is not sufficient: that the Courts ought also to have found that the area shown in the jamabandis was ascertained by actual measurement and by measurement with a rod of cubits. But the defendants never objected by their written statements that although the local rod was 32 cubits the measurements on which their rent had been calculated had been made with a rod of 4 cubits. Their objection was merely that the local bigha prevalent in the village was based on measurement with a rod of 4 cubits; and on this point the findings were, against them. It has been found that the rents of these defendants were originally fixed with reference to their reputed areas; that is to say, the rents were settled at so much a bigha on the assumption that the tenants held a certain number of bighas. On this finding that the rent was definitely settled with reference to the area, since the standard of measurement is known to be a bigha of 1225'' sq. yards, it is of no practical importance whether the original areas were ascertained by formal measurement or by mere guess-work.

It is pointed out on behalf of the cross-objectors that although the actual area of the village is 4882 bighas, the area shown in the landlord''s teiskhana jamabandi is 4443 bighas; and it is suggested that in some way or other this should have been treated as a point in favour of the defendants, as showing either that there was some difference in the standard of measurement, or that there has been no proper measurement at all.

On this argument it is sufficient to observe that the total area of the jamabandi is ascertained by adding together the areas of the separate holdings: and if, the area shown in the landlords'' jamabandi had not been less than the area ascertained by actual measurement, they would not have been entitled to apply for increase of rent. It has been clearly found that the tenants'' rents were originally settled with reference to reputed areas which are less than the areas now held; and on that finding they are liable to increase of rent u/s 52(1)(a), Ben. Ten. Act.

The result is that the plaintiffs'' appeals will be allowed: the decrees of the lower appellate Court will be set aside, and the decrees of the Munsif will be restored. The cross-objections will be dismissed with costs. The plaintiffs will be entitled to their costs throughout; but these three cases will be treated as one for calculation of pleader''s fees.

Das, J.

I agree.