Authored By : Ernest Edward Fletcher, Thomas WilliamRichardson

Ernest Edward Fletcher, J.

No. 15 of 1915

1. This is an appeal preferred by the defendants Nos. 1, 3and 7 against the decision of the learned Subordinate Judge of Chittagong,dated the 26th August 1914, affirming the decision of the Munsif of the sameplace. The suit was brought by the plaintiff for enhancement of rent and forrecovery of rent at the enhanced rate. The learned Munsif enhanced the rentfrom Rs. 411-8 0 per annum to Rs. 792. On appeal to the lower Appellate Court,the learned Subordinate Judge affirmed the decision of the Munsif. Against thatdecision, the present appellants have preferred this appeal to this Court.

2. The tenure in respect of which the plaintiff sought toenhance the rent is governed by a document in writing or rather two documentsin writing, namely, the patta executed by the landlord in favour of thetenure-holder and the kabuliyat executed by the tenure-holder in favour of thelandlord. The first point that is raised in this appeal is that these documentsdid not in themselves create the tenure but that the tenure was an old tenurewhich was merely confirmed or evidenced by these documents and thatconsequently the presumption contained in Section 50, Sub-section (2), of theBengal Tenancy Act would apply to this case and the rent having been paid since1848 when the lease was granted at an uniform rate, unless it is shown that thetenure had been created since the date of the Permanent Settlement, the rentwould not be liable to enhancement. It is admitted that on the face of thedocuments, there is nothing to show that these documents are merelyconfirmatory of a pre-existing tenure that was held by the person in whosefavour the patta was granted. The learned Judge in the Court below, consideringthe evidence that had been adduced to show whether the tenure was an oldpreexisting tenure, came to the conclusion that the evidence did not establishthat fact. We are bound by that finding in this appeal. The question,therefore, resolves itself to this:-- Does the lease in this case show that therent is not liable to enhancement" The learned Judge also came to theconclusion that the lease did not confer a permanent interest on the tenure-holder.With that view, as at present advised, I am not disposed to agree, because theuse of the words "taluka patta" would prima facie show that theinterest granted to the lessee was intended to be a permanent one. But in thiscountry, the grant of a permanent lease does not mean that the rent is alsofixed in perpetuity. The decisions in this Court which have come down from theold Sudder Diwani Court show that the rule has always been in this country thatgenerally when the lease is a permanent one, the rent is liable to enhancement,unless the landlord has precluded himself by a contract or is by law precludedfrom claiming an enhancement. That proposition is well illustrated in thedecision of the case cited by Sir. Rash Bihary Ghose in the course of hisargument, namely, the case of Taruck Chunder Nundee v. Modhoo Soodun Nundee 5W.R. Act. X Rulings, 80. Many other decisions have been cited where a similarview has been taken. The decisions in the cases of Gayratulla Sardar v GirishChandra Bhaumik : 12 C.W.N. 175 and Meher Ali v. KalaiKhalashi 29 Ind. Cas. 461 [LQ/CalHC/1915/104] : 19 C.W.N. 1129 are to the same effect. It may,therefore, he taken--and it has not been denied in the argument of Mr. MohendraNath Roy in reply to Sir Rash Behary Ghoses address--that this case must bedetermined on the terms of the contract that was entered into between theparties and that unless the landlord is precluded by the terms of that contractfrom claiming an enhancement, the rent is liable to be enhanced. Now, the termsof the contract, so far as material, are as follows:-- "You," thatis, the lessee, having applied of your own accord for a taluha patta,according to your own application, I having taken a taluka kabuliyat of thesaid total lands grant you this patta and thereby appoint you talukdar Thetotal rent of the said mouzahs is a consolidated sum of Companys Rs.420." The lease then proceeds as follows after some words that are notmaterial to state:--"if the Huzur (the Government) imposes any new assessment"(the words "any new assessment" occurring in the translation which wehave got which Sir Rash Behary Ghose says mean any new imposition, the otherside stating that those words mean any new sum) "that you shall givewithout any objection;" and the patta ends with these words: "If youdo not pay according to the kists given below, the arrear rents would berealized in accordance with the Regulations V, VII and VIII and other laws thatmay come into force, you shall not take any objection to the realization of therent." The main stress of the argument in this case has been on the wordscontained in the covenant, namely, that if the Huzur (Government) should imposeany new sum the lessee should pay that without any objection, The land let outby these documents consists of two portions; first, which is called the taraf,that is, the land of which the Government revenue is permanently assessed, and,secondly, the noabad land, that is, the land which is outside the PermanentSettlement in Bengal. It is argued that the covenant in this lease hasreference to the small portion of noabad land and that, it being expresslyagreed that the rent of the noabad land should be increased only in the case ofthe Government revenue being increased, therefore, the contract in this caseshows clearly that it was the intention of the parties that the landlord shouldbe precluded from raising the rent in any other case. But that argument doesnot seem to me to be sound. The covenant cannot be read with, reference only tothe revenue payable to the Government in respect of the noabad land. From itsvery terms, it would include any new cess, tax or imposition which theGovernment should impose upon the land, whether it is imposed on the taraf orthe noabad land. I see no reason why the covenant should be read in therestricted manner that the appellants have asked us to read it, as havingreference only to the revenue payable to the Government in respect of thenoabad land. I think we should not be justified in reading a covenant drawn ingeneral words with reference to a particular tax in respect of particular land.In my opinion, we should read the covenant with reference to the whole land andwith reference to any imposition that may be made by the Government in respectof any portion of the land. I do not think that we can read the covenant so asto alter the right of the landlord to have the rent enhanced in a suit properlybrought for the purpose.

3. The other portion of the document that was relied upon asshowing that the landlord had precluded himself from the right of applying tohave the rent increased was the portion which I have already read in which thelandlord was given the right, if the rent was in arrears, to apply to have therent recovered under the terms of what is known as the Putni Regulation. But itis admitted that the Putni Regulation applies in cases where the rent is notpermanently fixed. Where, as in this case, it has been agreed between theparties that resort might be had under the Putni Regulation to recover the rentin arrears, the rent cannot be said to have been permanently fixed. It seems tome that that clause in the lease does not assist the appellants in any way. Thecase is really thrown back on this:-- Does the covenant by the lessee to payany new assessment that the Government should impose on the land, show that thelandlord intended to preclude himself from having the ordinary right that alandlord would have of applying to have the rent enhanced in a propercase" I am clearly of opinion that it does not. The covenant, as I havealready said, cannot be read in the restricted way that the appellants wish itto be read and that being so, there are no words in this lease which would showthat the landlord had given up the ordinary right he had, namely, of applyingto the Court to have the rent enhanced in a proper case. In the result, I agreewith the decision of the Court of Appeal below. The present appeal, therefore,fails and must be dismissed with costs.

4. Let the record be sent down at once.

Thomas William Richardson, J.

5. I agree.

No. 3206 of 1914.

6. This appeal not being pressed is dismissed with costs.

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Upendralal Gupta and Ors.vs. Jogesh Chandra Roy(07.01.1917 - CALHC)