GANES DUTT SINGH Vs. LACHMI NARAIN SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of arrears, of rent due for the years 1313 to 1316 (Fasli). The case for the plaintiffs is that the holding in question was originally bhowli, that about the year 1889, the rent was commuted into nagdi at the rate of Rs. 5 a year and that rent was realised at that rate up to the year 1897, when the tenants agreed to pay rent at the enhanced rate of Rs. 6-8 in consideration of an improvement to be effected by the landlords. The improvement in question was a channel through which surplus water might flow out of the land. The plaintiffs assert that the improvement was effected at their expense and that the tenants have enjoyed the benefit thereof. The plaintiffs further allege that rent was paid by the tenants at the rate of Rs. 6-8 per bigha till quite recently, when there was a fresh agreement to pay rent at the enhanced rate of Rs. 9 per bigha in consideration of an improvement in the channel. The defendants deny all the allegations of the plaintiffs. They also deny the character of the tenancy and contend that rent was never paid even at the rate of Rs. 5 per bigha. They allege further that there was no agreement to pay rent at the rate of Rs. 6-8 on account of the improvement mentioned, much less was there a subsequent agreement to enhance the rent to Rs. 9. They finally contend that if there was an agreement for enhancement of rent, it was illegal as made in contravention of Section 29 of the Bengal Tenancy Act. The Court of first instance gave the plaintiffs a modified decree, which was confirmed on appeal by the District Judge. The case was then brought in second appeal to this Court and was remanded. This Court directed the District Judge to find whether the contract for enhancement of rent was valid and operative under Section 29 of the Bengal Tenancy Act, and, if it was not so operative, to determine, to what extent the rent should be enhanced under Section 30 (e) of the Bengal Tenancy Act. This remand was based on two findings contained in the judgment of the District Judge; namely, first, that there was an agreement to pay rent at the rate of Rs. 6-8 in consideration of the improvement to be effected by the landlords; and secondly, that the improvement in question had been made at the cost of the landlords and the benefit thereof had been enjoyed by the tenants. After remand, the District Judge has held, first, that the contract for enhancement of rent was invalid under Section 29 of the Bengal Tenancy Act. Secondly, that the plaintiffs were entitled to rent at the rate of Rs. 5-10 per bigha under Section 30 (c) of, the Bengal Tenancy Act. He has accordingly modified the decree by the Primary Court and has also allowed the plaintiffs damages upon the sum decreed in their favour. The plaintiffs have appealed against this decree. The defendants also have appealed on the ground that no enhancement should have been allowed and that no decree for damages should have been made. The appeals by the plaintiffs raise two substantial questions; first, is the contract for enhancement of rent valid under Section 29 of the Bengal Tenancy Act; and, secgndly, if it is not valid, what is the enhanced rent which should be decreed to the plaintiffs under Section 30 (c) of the Bengal Tenancy Act.

(2.) As regards the first question, there is now no controversy that the tenants did agree to pay enhanced rent in consideration of improvements to be effected by the landlords at their expense, that the improvements have been made and that the tenants have enjoyed the benefit thereof. But as this agreement for enhancement was not in writing and registered, as required by Clause (a) of Section 29, the question arises, whether the plaintiffs have brought themselves within Clause (1) of the proviso to that section. Clause (1) of Section 29 provides that the money rent of an occupancy raiyat may be enhanced by contract, subject to the condition that the contract must be in writing and registered. To this is added the proviso that nothing in the section shall prevent a landlord from recovering rent at the rate at which it has been actually paid for a continuous period of not less than three years immediately preceding the period for which the rent is claimed. Before the District Judge, it was argued that in all human probability the tenants paid rent at the enhanced rate of Rs. 6-8 a bigha, as contemplated by the first clause of the proviso. The considerations urged in support of the argument are set out in the judgment of the District Judge and may be recapitulated here. If there was an agreement to pay rent at the rate of Rs. 6-3 and if the improvements in question were effected by the landlords at their expense and enjoyed by the tenants, is it at all probable that the landlords should have from 1304 to 1312 accepted rent at the lower rate? No suit for rent was previously brought; rent had been amicably settled and it was difficult to understand why the landlords should have, during all these years, contented themselves with the smaller rent after they had invested capital on the works of improvement, in consideration of which the tenants agreed to pay a higher rent. The District Judge concedes that these considerations show that in all human probability the defendants had paid a sum higher than Rs. 5 per bigha from 1304 to 1312. But he declined to draw the inference that the rent had been paid at the enhanced contract rate, because, in his opinion, it was absolutely impossible to say what the sum paid was. In another passage in his judgment, he states that although the tenants agreed to pay Rs. 6-8 per bigha, if the landlords would improve the irrigation in the village, they did not in fact pay the whole of that amount, and the landlords, rather than fight the whole body of tenants, were glad to accept any addition to the previous rent which they were willing to give. In our opinion, the treatment of the case by the District Judge involves two errors of law, namely, first, he has applied a test of proof other than that embodied in Section 6 of the Indian Evidence Act; and sec ndly, he has not correctly appreciated the requirements of the first clause of the proviso to Section 29 of the Bengal Tenancy Act.

(3.) As regards the first point, we must bear in mind that Section 3 of the Indian Evidence Act lays down that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The effect of this section has been considered in two recent cases; namely, Boisogomoff v. Nahapiet Jute Company 29 C. 323 : 6 C.W.N. 405 and Jarat Kumari Dassi v. Bissessur Dutt 13 Ind. Cas. 577 : 39 C. 245 : 16 C.W.N. 265. In the second of these cases, Jenkins, C.J., pointed out that the materials on which Courts have to pronounce are necessarily imperfect; for apart from the inherent uncertainty of human affairs, the presentment of them to a tribunal is ordinarily the outcome of faulty observation, defective memory, inaccurate description and natural bias, and even that is blurred sometimes by the intervention of interpretation. Demonstration or a conclusion at all points logical cannot be expected, nor can a degree of certainty be demanded of which the matter under investigation is not reasonably capable. The Evidence Act, consequently, expresses the rule in terms which allow full effect to be given to circumstances or conditions of probability or improbability. To the same effect is the observation of Banerjee, J., in the case first mentioned; that Section 3 only lays down a rule of common sense. The judgment of the District Judge in this case shows that he has tested the evidence as if the Indian Evidence Act only provided that a fact is said to be proved when after considering the matter before it the Court believes it to exist. It has been overlooked that a fact is also said to be proved when the Court considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The District Judge has very forcibly set out the circumstances which, in his opinion, show that, in all human probability, the tenants paid rent at a rate higher than Rs. 5. He should consequently have held that the fact in question has been proved.