AI Structured Summary
Not yet generated for this judgment
Judgment
Coutts, J.—These appeals arise out of suits for enhancement of rent. The suits have been dismissed in both the Courts below and the plaintiff has appealed.
The first point that arises is whether, in view of the provisions of section 115, the tenants are entitled to the benefit of the presumption which arises u/s 50(2) of the Bengal Tenancy Act. Both the Courts below, on the authority of Gulab Misser v. Kumar Kalanand Singh (1910) 14 C.W.N. 884: 12 C.L. J. 107: 6 I.C. 217 and Prithi Chand Lal Choudhury v. Sheikh Mohammad Tahir (1916) 1 Pat L.J. 67: 3 Pat. L.W. 427: 35 I.C. 427, have held that the tenants are entitled to the benefit of the presumption. These decisions, however, have been overruled by a number of decisions both in the Calcutta High Court and in this Court and I need only refer to the following cases: Pirthi Chand Lal Chowdhury Vs. Sheikh Basarat Ali, , Harihar Persad Bajpai v. Ayub Missir (1918) 45 Cal. 930: 22 I.C. 604, Har Lal v. Mussammat Gohi (1919) 23 C.W.N. 1041: 30 C.L.J. 9: 52 I.C. 79, Gurucharan Nand v. Sarab Ali (1920) 1 Pat L.T. 27: 54 I.C. 672 and Jagdeo Narain Singh v. Bhagwan Matho. In view of these decisions which, in my opinion, embody the correct view of the law, the tenants are not entitled to the benefit of the presumption; and, in order to establish that they are tenants at fixed rent in perpetuity, they would have to establish by evidence that they have been holding at the rate of rent which has not been changed since the time of the permanent settlement.
It has been urged that the learned Subordinate Judge has found as a fact that the tenants have established this. It is true that the learned Subordinate Judge has said in his judgment that:
apart from any presumption u/s 50 of the Bengal Tenancy Act, it can be safely held that the defendant''s status is Sharahmoyan at rent fixed in perpetuity
How he arrives at this conclusion, he does not say, but it would appear that he comes to this conclusion because the tenants have produced rent-receipts covering a period of from 25 to 33 years. It is contended by the learned Vakil for the respondents that in view of the fact that the tenants have proved that they have paid rent at a fixed rate for from 25 to 33 years the Court is entitled to presume that they have been paying at fixed rate from the time of the permanent settlement. I am unable to accept this contention. If it were correct it would lead to this-that a tenant, although he was not entitled to the presumption which arises u/s 50(2) of the Bengal Tenancy Act, would be entitled to prove that be had paid rent at the same rate for say 21 years and would then be entitled to what has been called a natural presumption in his favour. This could clearly not be so No such presumption arises. The decision of the Court below is clearly wrong and must be set aside. I would accordingly set it aside and remand the cases for rehearing and for decision as to what the amount of enhancement should be. The appellant is entitled to the costs of these appeals.
Das, J.
I agree.