Khajeh Habibullah v. Umed Ali

Chatterjea and Duval, JJ.:— These appeals arise out of the same suits and the main questions in these casea are first, whether the lower Appellate Court has misunderstood the provisions of sub-section (6) of section 52 of the Bengal Tenancy Act and, secondly, whether that Court has erred in not taking into consideration matters which should have been considered under this section in determining the question whether the plaintiffs are entitled to additional rent in respect of additional area.

Section 52, sub-section (6) runs as follows:— “When in a suit under this section the landlord or tenant proves that, at the time the measurement on which the claim is based was made, there existed in respect of the estate or permanent tenure or part thereof in which the tenure or holding is situate, a practice of settlement being made after measurement of the land assessed with rent, it may be presumed that the area of the tenure or holding specified in any patta or kabuliyat, or (where there is an entry of area in a counterfoil receipt corresponding to the entry in the rent-roll) in any rent-roll relating to it, has been entered in such patta, kabuliyat or rent-roll after measurement.”

The learned Sub-ordinate Judge was of opinion that the practice of recent measurement would not help the plaintiff. The learned pleader for the appellant contends that the words “at the time the measurement on which the claim is based was made” in sub-section (6) of section 52 refer to the measurement upon which the excess area is found out before the institution of the suit, and that it does not refer to the measurement made at the time of the original settlement. We are unable, however, to hold that this is what is meant by the section. The landlord has to prove under the section that there has been an increase in the area for which rent was previously paid, and in order to do so, it has been held that he must show that the land was measured at the time of the inception of the tenancy by a particular standard of measurement, and that there has been an increase in the area on measurement by the same standard. The section merely 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 patta, kabuliyat or 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 patta, kabuliyat or 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. [See the case of Uma Singh v. Rai Tarini Prosad Bahadur ].

If the contention of the appellant were accepted, it would follow that the landlord on showing that there is a recent practice of settlement of land after measurement (which may be started by the landlord a few years before the suit) would be entitled to ask the Court to presume that there has been such a practice 50 or 60 years before the institution of the suit, when the tenancy was created. We do not think that is the meaning of the sub-section, although the language used makes it somewhat ambiguous. We are accordingly of opinion that so far as the contention is based upon sub-section (6) of section 52, it must be overruled.

The learned Sub-ordinate Judge, however, does not deal with the facts of the case bearing on the question of measurement. In the first place he says that the plaintiffs have given evidence as to the recent practice prevailing in the mouzali about the settlement of lands. It has been pointed out to us that the plaintiff adduced evidence to show that lands had been settled after measurement from the year 1842 and there were produced papers of 1258 and 1280 which are referred to in the judgment of the Munsif. Besides there appears to have been a survey and settlement of lands in the year 1276. The learned Munsif appears to have considered the entire evidence bearing upon the question. The lower Appellate Court has not come to any finding upon the facts and has practically proceeded upon the proposition of law mentioned in his judgment.

We think, therefore, that the cases should go back to the lower Appellate Court in order that the question may be considered and findings arrived at upon the evidence on the record, and the appeal disposed of according to law.

Costs to abide the result.

This judgment will govern S.A Nos. 666 and 89C of 1916, the question in these cases being similar.

G.S

Cases remanded.