Uma Singh And Others v. Tarini Prosad Bahadur .

N. Chatterjea, J.:— This appeal arises out of proceedings for settlement of rent under Section 105 of the Ben. Ten. Act. The tenants are the appellants and two grounds have been urged in support of the appeals.

2. The first is that the special Judge has misunderstood the provisions of S. 52, sub-S. (6), and that he has not properly considered all the elements which must be established under Section 52 of the Ben. Ten. Act, before additional rent can be assessed in respect of excess lands, and the second that the special Judge has not considered the question whether, apart from the provisions of Section 50 of the Ben. Ten. Act, the facts proved in the case give rise to an inference that the rents of the tenants were fixed in prepetuity. As regards the first contention I do not think that the special Judge has misunderstood the provisions of Sub-S. 6, Section 52 of the Ben. Ten. Act. In order to entitle a landlord to claim additional rent in respect of excess lands, he must establish that the tenant is in possession of lands in excess of those for which he is paying rent. The facts that the tenant is in possession of lands in excess of the area entered in the zamindari papers and in his rent receipts, would not necessarily prove that he holds lands in excess of the area for which rent is paid by him. It must be shown that the settlement was made on the basis of a measurement in which on a fresh measurement made by the same length of measure it has been found that the land is in excess of the area let out to him. Accordingly the landlord has to prove in each case that the area entered in the zamindari papers or rent receipts was so entered after actual measurement. Sub-S. 6, Section 52 of the Ben. Ten. Act, however provides that if the landlord proves that at the time the measurement on which the claim is based was made there existed a practice of settlement being made after measurement of the land assessed with rent, it may be presumed that the area specified in the counterfoil rent receipt was entered in it after measurement, so that if the landlord can prove such a practice it will be presumed that the area entered in the rent receipt was entered after measurement though he is not able to prove that, as a matter of fact, the lands in the particular case were settled after measurement. It was contended on behalf of “the appellant that all that sub-S. 6 means is that if the practice mentioned therein is proved, the entry in the last dakhila or kabuliyat in a series of adjustments of rents is to be presumed to have been made after measurement and not that the original settlement was so made. But if there is no adjustment subsequent to the original settlement and a practice is proved to have existed at that time, the presumption would apply to the original settlement, and it does not appear that in the present case there was any subsequent adjustment. Assuming that there was any it would not, in my opinion, make any difference, because if the last entry is to be presumed to have been made after measurement (it being proved that there was a practice at the time of settlement after measurement), and by the present measurement by the same length of measure the land is found to be in excess, the landlord will be entitled to additional rent unless it is shown that the rent was a consolidated one.

3. The present case does not rest on presumption alone. The learned Judge finds that there is evidence of practice of settlement after measurement and though the evidence was not very strong, it has received the strongest possible corroboration from admissions by certain tenants themselves who were examined as witnesses in the case which, whether they amount to admissions of actual measurement or not, certainly show that the areas as entered in the landlord's papers were found by the tenants themselves to be correct. He also finds that the rents paid by the tenants were paid upon the areas as shown in the landlord's papers. The findings of the Court below are conclusive upon this matter.

4. The learned pleader for the appellant, however contended that the mere fact of a presumption arising under sub-S. 6, Section 52 of the Ben. Ten. Act, as to the settlement having been made after measurement would not be sufficient to establish excess area and that the special Judge should have considered whether other elements of S. 52 had been established, for instance whether the rent was a consolidated rent for an area within the specified boundaries irrespective of its precise quantity at the inception of the ??? but the Court is to go into the ??? mentioned in sub-S. 2, S. 52, in required by any party to the suit. It was for the tenants to raise such questions, but no such question appears to have been raised in the Courts below. In the case of Lukhi Narain Saronji v. Sri Ram Chandra Bhunya . [1911] 11 I.C 212. where a landlord proved that lands were once measured according to a known standard, that the rent was assessed on that measurement, that the area as well as the rent payable was entered in the kyaibuliats and that the area of the lands measured by the same standard was in excess of the original area, it was held that, unless it were established that the rent payable was a consolidated rent within specified boundaries irrespective of the precise quantity, the landlord was entitled to claim additional rent. The principle laid down above applies to the present case.

5. Besides the Court of appeal below has come to the conclusion that rents were paid with reference to the areas shown in the landlord's papers, which negatives the suggestion of the rent having been a consolidated one irrespective of the precise quantity let out. The first contention accordingly fails.

6. It was next contended that the Court below ought to have considered the question whether the rent was fixed in perpetuity from the time it was being paid at a unifrom rate, though the original rent might have been varied or the holding might have come into existence after the permanent settlement.

7. It is true a presumption as to fixity of rent may be drawn from long and uniform payment of rent apart from and independently of the provisions of Section 50 of the Ben. Ten. Act. But no such question was raised in the Court below. The tenants nowhere set up any contract subsequent to the permanent settlement whereby the rent was fixed and the Court cannot be asked to presume a contract where no such contract is set up. This contention also therefore fails and the appeal is dismissed with costs.

JUDGMENT

8. It appears to us that this is really a very simple case and one which we can dispose of very briefly: if once it be held that the Court was entitled to make the presumption permitted, though not made obligatory, by sub-S. (6) it follows that the rent is one to be determined by reference to the area and is not a consolidated rent. The first point therefore to determine is whether the Court was entitled to make the presumption; we think it was. If that be so, we think there is an end of the case because it supports the conclusion that the rent was not consolidated but one to be determined by reference to the area. The area has been found and justifies the conclusion of the lower appellate Court.

9. We must therefore dismiss the appeal with costs.

V.B/R.K

10. Appeal dismissed.