SURENDRA CHANDRA RAY CHOUDHURI Vs. KEDARESWAR CHOUDHURI

JUDGEMENT

(1.) These five appeals arise out of suits for recovery of rent. They have been decreed by the lower appellate Court at the admitted rate. The plaintiff claims that he is entitled to enhanced rent as fixed by the Settlement Officer under Section 105, Ben. Ten. Act. It appears that the plaintiff had several co-sharers in the mehal. There were batwara proceedings and certain lands were allotted to the plaintiff in his Saham. After the publication of the Record-of-Rights he applied for settlement of fair and equitable rent under Section 105, Ben. Ten. Act on the grounds which are covered by Section 30, Ben. Ten Act. These applications were fought by the defendants and partially allowed. The plaintiff in these suits now claims rent as fixed by ihe Settlement Officer. The defence with which we are now concerned is that the Settlement Officer had no jurisdiction to try the matter under Section 105, Ben. Ten. Act and, therefore, his decree is a nullity and cannot have legal effect. This objection is based upon the ground that the settlement khatians show that they include several plots and with reference to one plot in some of them the defendants interest in the holding as a raiyat is noted as fractional, the plots in occupation of the defendants together with the share in one plot did not constitute a holding within the meaning of Section 30, Ben. Ten. Act and accordingly the Settlement Officer had no jurisdiction to enhance the rent of the lands in the occupation of the defendants. The learned Subordinate Judge has given effect to this contention and held that the word land used in Section 105 does not mean and include a parcel or undivided share of a tenancy and hence the Settlement Officer had no jurisdiction to enhance the rent under Section 105 and his decision is ultra vires and inoperative.

(2.) The question raised is a serious one as it is directed to nullify the effect of the solemn act of a Court of justice. We have therefore carefully looked into the matter and the law as it at present stands and we are unable to say that the decree of the revenue officer was without jurisdiction and ultra vires. The meaning of the term land came up for consideration in the case of Safaruddi V/s. A.K. Fazal Huq [1914] 21 0. L.J. 592. The case was tried by D. Chatterjee, J. sitting singly and his decision was affirmed by a Bench consisting of Jenkins, C.J., and N.R. Chatterjea, J. The report of the case as it appears in the Calcutta Law Journal leads one to suppose that there was a division between the cosharers of the land and the tenants had executed separate kabuliats in favour of the cosharers. If that were so, the decision would be in consonance with the decisions of case under Section 30, Ben. Ten. Act. Bat we have looked into the record of the case and find that as a matter of fact there was no division of the land but the tenants executed kabuliats in favour of different cosharers in respect of their share in the holding. The learned Judge there considered as to what meaning should be attached to the word land in Section 105, Ban. Ten. Act and the observation made by him on this point may be quoted here with advantage: The next question that arises is whether the share of the land covered by each kabuliat can be said to be the land held by the tenant. It has been held in respect of holdings that a share of an undivided holding cannot be called a holding : see Hurry Churn V/s. Raja, Runjit Singh [1896] 25 Cal. 917 note. The word holding does not occur in Sec. 105. The word occurring there is land held by the tenant. The word land has not been defined in the Bengal Tenancy Act. I do not see any reason why the share of the land held under particular landlord should not come within the purview of the word land used in the section. In this view of the case I think that Section 188, Ban. Ten. Act is no bar to the maintenance of this application.

(3.) In that case the objection was that one of the landlords who wanted to enhance the rent under Section 52, Ben. Ten. Act could not apply for settlement of fair rent. In the Letters Patent appeal Jenkins, C.J. remarked: This case has been decided favourably to the plaintiffs by Digambar Chatterjee, J. on the footing that there were separate tenancies and we think that it there were separate tenancies then in the circumstances of this case there was a compliance with the provisions of Section 105, Ben. Ten. Act.