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Braja Das Roy v. Bankim Chandra Bhuia .
Factual and Procedural Background
This appeal arises from a suit by the plaintiffs for enhancement of rent under Section 7 of the Bengal Tenancy Act. A record of rights was prepared and finally published on 28 May 1918, describing the tenancy as kaimi but not mokarari. The plaintiffs relied on that record and sought enhancement; the defence was that the rent was fixed and not liable to enhancement. The court of first instance held the rent liable to enhancement and fixed what it considered a fair and equitable rent. On appeal by the defendants the appellate court accepted the contention that the rent was fixed. The plaintiffs then appealed. It was admitted that a solenama of 1891 recorded the rent as about Rs. 43 and that the rent had not been varied for approximately 29 years prior to the suit. B.B. Ghose, J. delivered the opinion; Newbould, J. concurred.
Legal Issues Presented
- Whether a presumption of fixity of rent arises from long and unvaried payment (29 years) in a case brought under the Bengal Tenancy Act.
- Whether the presumption under Section 50, sub-section (2) of the Bengal Tenancy Act applies where, under Chapter X and Section 115, the record of rights expressly records the tenancy as not mokarari.
- Whether defendants may rely on the presumption of Section 50 in defence of a landlord's suit when they might, within the limitation period, bring a suit under the proviso to Section 111-A to challenge the record of rights.
Arguments of the Parties
Plaintiffs' (Appellants') Arguments
- Having regard to Section 115 of the Bengal Tenancy Act, the learned Judge below erred in holding that a presumption of fixity of rent arises from unvaried rent paid for 29 years prior to the suit.
Defendants' (Respondents') Arguments
- The rent was fixed (not liable to enhancement); the learned Judge found that the long unvaried payment rebutted the entry that the tenure was not mokarari.
- The respondents' vakil argued that observations in Pirthichand Lal Chowdhry v. Basarat Ali indicate Section 115 cannot be given effect because defendants might, within six years of the record, bring a suit under the proviso to Section 111-A and then rely on the presumption under Section 50; thus they should be allowed to rely on that presumption when defending the landlord's suit before the expiry of that limitation period.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Prithichand Lal Chowdhry v. Basarat Ali | Principle that where particulars under Chapter X record a tenancy as not mokarari, the presumption under Section 50 does not apply. | Followed as authoritative: used to support that Section 115 precludes application of the presumption under Section 50 where the record records tenancy as not mokarari. |
| Pirthichand Lal Chowdhry v. Basarat Ali | Observations (at page 39) relied on by respondents' counsel regarding availability of remedies under Chapter X and Section 111-A. | Court distinguished those observations as addressing proceedings under Chapter X; held they do not prevent application of Section 115 where no Chapter X proceedings have been taken. |
| Harihar Prasad Bajpai v. Ajub Misir | Application of the principle that Section 115 excludes the presumption under Section 50 when the record shows tenancy is not mokarari. | Referenced as a followed authority supporting the court's conclusion that Section 115 bars the presumption under Section 50 in the present case. |
Court's Reasoning and Analysis
The court examined the learned Judge's reasoning that the description of the tenure as kaimi had been rebutted by the admitted fact of unvaried rent since 1891 (about 29 years). It held that under the Bengal Tenancy Act mere long and uniform payment of rent cannot give rise to a presumption of fixity except where the presumption arises under Section 50. To allow otherwise would improperly oblige landlords to enhance rent periodically. The decisive question was whether the presumption under Section 50(2) could operate here. Relying on Section 115 (and authorities following the Full Bench principle in Prithichand Lal Chowdhry v. Basarat Ali and the case of Harihar Prasad Bajpai v. Ajub Misir), the court held that where Chapter X particulars record a tenancy as not mokarari, Section 115 expressly provides that the presumption under Section 50 shall not thereafter apply. The court rejected the respondents' contention based on observations in Pirthichand Lal Chowdhry as pertaining to situations where Chapter X proceedings are taken to challenge the record; where no such proceedings are taken, the clear language of Section 115 governs. Applying these principles, the court found the learned Judge's conclusion of fixity in perpetuity unsustainable.
Holding and Implications
APPEAL ALLOWED
Holding:
- The decision of the learned Judge below that the rent of this tenancy was fixed in perpetuity is set aside.
- The presumption under Section 50 does not apply to this tenancy because, under Chapter X and Section 115, the record of rights records the tenancy as not mokarari.
Implications:
- The case is remitted to the lower Appellate Court to determine the fair rent for the tenancy and for disposal of the appeal.
- The plaintiffs are awarded their costs of this appeal; the cross-objection is dismissed without costs.
- The opinion applies existing authorities (Prithichand/Pirthichand Lal Chowdhry and Harihar Prasad Bajpai) and does not purport to establish a new legal principle beyond applying Section 115 as written.
B.B Ghose, J.:— This appeal arises out of a suit brought by the plaintiffs for enhancement of rent under Section 7 of the Bengal Tenancy Act. Record of rights was prepared with regard to this tenancy which was finally published on the 28th May 1918. The record was that it was a kaimi tenure but not mokarari. The plaintiffs rely upon the record of rights and ask for enhancement of rent. The defence, which it is now necessary for us to mention, was that the rent was fixed and not liable to enhancement. The Court of first instance found that the rent was liable to enhancement and fixed the rent which it considered to be fair and equitable. On appeal by the defendants they again urged that the rent was fixed and the learned Judge below has given effect to that contention.
2. In the plaintiffs' appeal, the main argument addressed on their behalf is that having regard to the provisions of Section 115 of the Bengal Tenancy Act the learned Judge below was in error in holding that any presumption of fixity of rent arises on account of unvaried rent having been paid for 29 years prior to the institution of the suit.
3. What the Judge says is this:—
“In my opinion however having regard to the fact that the tenure has been described as kaimi the presumption as to the correctness of the entry with regard to its not being mokarari has been rebutted by the admitted fact that the rent has not been varied since 1891, that is, for nearly 29 years period to the institution of the suit.”
4. It is necessary to mention that in 1891 a solenama was entered into between the parties where the rent was stated to be Rs. 43 and odd at that time. The learned Judge relies on a series of cases in which, apart from the provisions of Section 50, sub-Section (2) of the Bengal Tenancy Act, the inference was drawn as to the fixity of rent from long payment of rent at a uniform rate when the cases were not under the Bengal Tenancy Act. In our opinion it cannot be held in a case brought under the Bengal Tenancy Act that any presumption arises as to the fixity of rent from mere payment of the same rate of rent for a number of years apart from the presumption arising, under S. 50 of the Act. To hold otherwise would do to require every landlord to enhance the rent of every tenant under him at certain intervals of time which he might not] himself desire to do.
5. The question then simply turns on the proposition whether in the present case the presumption under S. 50, sub-S. (2) can be given effect to. Having regard to the provision of Section 115 of the Bengal Tenancy Act, as it has been recorded under Chapter X of the Act that the tenancy is not mokarari, we are of opinion that, the presumption under S. 50 does not apply to this tenancy. It has been so held in a number of cases following the principle laid down in the Full Bench case of Prithichand Lal Chowdhry v. Basarat Ali(1). We need refer only to one of them, the case of Harihar Prasad Bajpai v. Ajub Misir(2) which has been followed in several subsequent cases. The learned vakil for the respondents, however, argues reiving upon certain observations made at page 39 of the report in Pirthichand Lal Chowdhry v. Basarat Ali, that the provisions of S. 115 cannot be given effect to in this case since it is still open to the defendants to bring a suit for declaration that the record of rights is erroneous, under the proviso to Section 111-A of the Bengal Tenancy Act. His argument may be stated in this way the defendants might bring a suit under that proviso within six years of the record of rights and if they had brought such a suit they might rely upon the presumption raised under Section 50 of the Bengal Tenancy Act in support of their contention, and it is only reasonable that they should be allowed to rely upon the presumption of S. 50 when defending a suit brought by the landlord before the expiry of the period of limitation with regard to their suit for declaration that the record of rights is erroneons. But the observation relied on were with reference to proceedings taken under Chapter X against the record. Where no such proceedings are taken the clear provisions of S. 115 should be given effect to. That section says. “When the particulars mentioned is S. 103 clause (6) have been recorded under this chapter in respect of any tenancy the presumption under S. 50 shall not thereafter apply to that tenancy.” Among the particulars, it is mentioned that the present tenancy is not a mokarari tenancy and therefore according to the express provisions of this section the presumption under S. 50 cannot apply.
6. In our opinion the contention of the appellants is right and the decision of the learned Judge that the rent of this tenancy was fixed in perpetuity must therefore be set aside. The learned Judge in view of his decision did not consider what should, be the fair rent of this tenure. The case must therefore be sent back to the lower Appellate Court for coming to a decision on the question and for disposal of the appeal. The plaintiffs are entitled to their costs of this appeal.
7. The cross objection is dismissed without costs.
8. [Newbould, J.:— also concurred in the above judgment.]
9. Appeal allowed.
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