Kishori Mohan Bose vs Sheikh Ujir

Lawrence H. Jenkins, C.J.—This case comes before us by way of second appeal and arises out of a suit brought for recovery of an enhanced rent. The claim was allowed by the Court of first instance, but in the lower Appellate Court it was held that the plaintiffs were only entitled to get the rent and cesses admitted by the defendants. From the decree which followed on that judgment the present appeal is preferred, and it is contended that, having regard to the nature of the enhancement, there was no answer to the landlord''s claim. The case has been argued before us with considerable ingenuity by Mr. Sen, and what he contends is that Section 29 of the Bengal Tenancy Act has no application where a money-rent is enhanced by the addition of a rent-in-kind. The basis of that argument is, and has to be, that Section 29 is throughout limited to a money-rent, and that the enhancement on which it places a limit is an enhancement by way of additional money-rent and not by way of an additional rent-in-kind. But this argument overlooks the operation of Section 28 which says that, "where an occupancy-raiyat pays his rent in money, his rent shall not be enhanced except as provided by this Act" and if Section 29 does not contemplate the possibility of the enhancement of a money-rent by the addition of a rent-in-kind, it is clear that a money-rent cannot be increased in that way. But assuming that money-rent can be enhanced by the addition of a rent-in-kind, it clearly must be subject to the limit imposed by that Clause (b) of Section 29. On the finding of the lower Appellate Court in this case, the additional rent does exceed the limit imposed by Clause (6), with the result that it is irrecoverable.

On these grounds it appears that the decision of the lower Appellate Court is correct, and that the decree of that Court should be confirmed with costs.

This judgment will govern the other appeal.