NAGI MAMUD PRAMANIK Vs. AHAMMAD IDRIS KHAN

JUDGEMENT

(1.) These are 20 appeals and arise out of as many applications brought by the respondent landlords under Section 105, Ben. Ten. Act, for settlement of fair and equitable rent. It appears that in the Record-of-Rights the defendants-appellants in each of these proceedings. were recorded as occupancy raiyats. The landlords consequently instituted these proceedings under Section105 for settlement of fair and equitable rent in respect of each of these tenancies and asked for enhancement of rent on the ground of rise of price of staple food crops under Section 30 (b), Ben. Ten. Act. It appears that in each of these tenancies-separate kabuliyats had been executed in favour of the landlords by the tenants. But the kabuliyats are in respect of lands which form the undivided share of the entire lands which are held under three-sets of cosharers of which the landlords who instituted these proceedings are one and have got only a third share in each of these holdings; the remaining landlords of 2/3rds share are not parties to these. Section 105 proceedings, nor have they filed separate applications in respect thereof. The tenant defendants raised several issues in these proceedings of which it is necessary to notice only two. Issue 4 was to the effect whether there should be enhancement on the ground of rise of prices of staple food crops and what that enhancement should be. The tenant defendants evidently raised the contention that the tenancies were holdings at fixed rent and consequently they had been wrongly recorded as occupancy raiyats. This contention gave rise to issue 6 which was as follows: " Are the tenancies in question held at fixed rent"?

(2.) The Assistant Settlement Officer who dealt with these proceedings in the first instance came to the conclusion that the tenants were not tenants, who held at fixed rent and that the rents of the tenancies were liable to enhancement. He also held that an enhancement could be allowed having regard to the principles laid down in Section 30 (b), Ben. Ten. Act. He allowed enhancement on the ground of rise of prices of staple food crops at the rate of 4 annas in the rupee and he considered the enhancement as fair and equitable. Against this decision of the Assistant Settlement Officer in these proceedings appeals were taken to the Court of the Subordinate Judge of Bogra who evidently must have been invested with powers of a Special Judge and the learned Special Judge affirmed the decisions of the Settlement Officer in these .20 proceedings and dismissed the appeals of the defendants.

(3.) Against the decisions in these 20 proceedings the present appeals have been brought by the defendants. Two points have been taken before us by the learned advocate who appears on their behalf. It is said, in the first place, that it having been found that the tenants in each of these cases have been paying uniform rent for more than 20 years prior to the institution of these proceedings and the origin of the tenancies being unknown they were entitled to the benefit of the presumption under Section 50, Ben. Ten. Act, and it is further argued that the lower appellate Court was clearly in error in holding that the presumption had been rebutted iu each of these cases by the kabuliyats which had been filed in the several cases. The second contention raised before us is that the claim for enhancement of rent on the ground of rise in the prices of staple food crops should have been disallowed as the lands held by the tenants in each of these cases do not constitute a holding within the meaning of the Bengal Tenancy Act and therefore Section 30, Clause (b) does not apply to these cases and consequently the claim for enhancement should not have been entertained and the settlement of fair and equitable rent should not have been made on the basis as if Section 30, Clause (b) applies to these cases.