SRIPATI CHARAN DE Vs. KAILASH CHANDRA JANA

JUDGEMENT

(1.) The defendant is an occupancy raiyat. His tenancy has been in existence from certainly before 1928 and consists of thirteen complete parcels of land and undivided shares in three other parcels. It is held at an annual rental of Rs. 21-3-8. The plaintiffs sued him for recovery of the balance of the rent and cesses due for the year 1337 and claimed damages at 25 per cent. On this part of the claim the only controversy between the parties was in respect of the claim for damages. The first Court allowed damages at the rate of 6-1/4 per cent and there is no further question relating thereto.

(2.) The plaintiffs however claimed enhancement of rent on the grounds mentioned in Section 30 (b), Ben. Ten. Act. They filed the suit on 18 June 1931, that is after the Bengal Tenancy Amendments Act (Act 4 of 1928 B. C), had come into force. This claim of the plaintiffs was resisted by the defendant in the lower Courts and is resisted before me. The learned Munsiff held that the plaintiffs were entitled to enhancement of rent on the grounds mentioned in that section and enhanced the rent by one and half anna per rupee. The learned Subordinate Judge however on appeal has negatived the plaintiffs claim. The plaintiffs accordingly have filed this appeal, and ask for the restoration of the decree of the learned Munsiff. The question raised in this appeal, as far as I am aware, is of first impression. The case of 33 Bir Bikram Kishore v. Rajjab Ali 1930 Cal 238 approaches the case I have to decide very nearly, but is not exactly the same.

(3.) There cannot be any doubt that if the suit had been instituted and decided before the amendment of the definition of "holding" by Act 4 of 1928, the plaintiffs claim for enhancement on the grounds mentioned in Section 30 would have failed, on the ground that the defendant's tenancy is not a holding as defined in the Bengal Tenancy Act before the amendment of the year 1928. The decisions of this Court on this point are uniform since 1898, when the case in Haribole Brahmo V/s. Tasimuddin Mondal (1898) 2 C W N 680 was decided: Parbati Debi V/s. Mathura Nath (1913) 40 Cal 29; Binayak Das Achari V/s. Samiruddin 1920 Cal 701. The cases of Binayak Das Achari V/s. Samiruddin 1920 Cal 701, Uma Charan V/s. Moniram (1904) 8 C W N 192 and Baidyanath Mondal V/s. Sudharam Misri (1904) 8 C W N 751 cited by the learned Advocate for the appellant, have no bearing upon the point, and I may parenthetically observe that I do not see how in any event 25 Cal 917n Binayak Das Achari v. Samiruddin 1920 Cal 701 supports him. In that case on a difference between Petheram, C. J., and Rampini, J., the matter was referred to banerjee J., who in agreement with Rampini J., held that a ryoti tenancy which comprised undivided shares in parcels of land was not a holding as defined in the Bengal Tenancy Act then in force and that rent would not be a first charge on such a ryoti tenancy as Section 65, Ben. Ten. Act, made rent a first charge on "a holding." The case of Baidyanath Mondal V/s. Sudharam Misri (1904) 8 C W N 751 is a case of a different type altogether. There the ryoti tenancy which comprised undivided shares in parcels of land had been created before the Bengal Tenancy Act was passed and when Act 8 of 1869 (B. C.) was in force. The said Act did not define "holding" in terms of the Bengal Tenancy Act. The tenant had acquired occupancy rights under Act 8 of 1869. The right so acquired could not be taken away by the Bengal Tenancy Act. The estate or zamindary under which the said tenancy was held was purchased by the plaintiff at a revenue sale, and he brought the suit to get Khan possession of the lands of the said tenancy. The defendant who owned the tenancy set up that his interest was protected by Section 37, Revenue Sales Act 9 of 1859, as he had occupancy right. It was held that he had occupancy right and was so protected from eviction. Even if such a tenancy had been created after the Bengal Tenancy Act came into force (but before Act 4 of 1928 B. C.) there would not have been any difference. A tenant who has been granted lease of land for the purpose of cultivation, would be a ryot even if the demised premises be undivided shares in parcels of land.