AJAD BAKT MANDAL Vs. REBATI MOHAN CHOWDHURY

JUDGEMENT

(1.) These three appeals have arisen out of three analogous rent suits. Rent is claimed for the years 1331-1334 B.S., at the rate of: The defendants maintain that the rent is:

(2.) The suits were decreed at the rates claimed, by both the Courts, the appellate Court merely repeating in an abbreviated form the judgment of the first Court. The learned Munsif refers to the fact that the plaintiff does not claim rents at enhanced rates on the ground of increase in area of the lands in suit, he claims rents on the basis of a fresh assessment. which was accepted by the tenant who paid enhanced rents amicably for three years according to the new assessment. He adds that evidence is wanting for the establishment of a case Under Section 52, Ben. Ten Act, and in this he is correct for there is no satisfactory evidence as to the area for which rent was originally paid at the rates at which the tenants at will claim to hold the land. There is no proof, for instance, that the area was measured when originally let out, nor what the standard of measurement was. So far the Courts below are entirely correct, but I think the learned Munsif is wrong in holding that Section 29, Ben. Ten. Act, has no application in these cases.

(3.) The landlord is not entitled to enhance the rent by agreement with the tenant beyond the amount allowed by Section 29, Ben. Ten. Act, except in circumstances which are nob really in violation of the terms of Section 29 of the Act, e. g., the settlement of a bona fide dispute as to the rate of rent to avoid further litigation Sheo Sahoy Panday V/s. Ram Rachia Roy (1891) 18 Cal 833 and Bata Mandal V/s. Manindra Chandra Nandi AIR 1915 Cal 211 or in settlement of a bona fide dispute as to the area of the holding: Kedar Nandi V/s. Manindra Chandra Nandi (1910) 5 IC 309 and Manindra Chandra Nandi V/s. Kaulat Sheikh . No doubt where fresh lands have been added to a holding by encroachment or otherwise, and the tenants, have agreed to pay additional rent for the actual area the landlord is not bound by the terms of Section 29, Ben. Ten. Act, as the new holdings are not identical with the old, but in such cases he must prove that there has actually been an increase in the area of the holdings. This the landlord has failed to do in these cases and the tenants maintain that the areas are unchanged. In so far therefore as the enhancements of rent in these cases are in excess of the amounts allowable according to the terms of Section 29, Ben. Ten. Act, they are illegal and the rents must be reduced accordingly.