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Judgment
Dhavle, J.—These are appeals by the plaintiff landlords. Section A. No. 867 of 1933, arises out of title Suit No. 363/31 brought by the landlord in respect of an entry in the Kosi diara record of rights that the defendant was a malguzar "istimrari mukarrari" with an area of 17.79 acres and a fixed rent of Rs. 7-0-7� pies, besides 37 acres of land, the rent of which could, be enhanced in accordance with the law and was afterwards assessed by the. Settlement Officer u/s 112, Ben. Ten. Act, at a figure which made up a total of Rs. 8. The plaintiff asked for a declaration that the defendant was not entitled to fixity of rent but had a kaimi as opposed to an istimrari mukarrari status and for settling a fair rent to be comprised in the Settlement Rent Roll prepared u/s 104-A to Section 104-F of Ben. Ten. Act.
The other three appeals arise out of three suits brought by another landlord in respect of similar entries sharahmanaiyan in respect however not of tenure-holders but of tenants recorded as raiyats who according to the plaintiffs were occupancy raiyats only. The prayers were that the holdings be determined to be kaimi and not sharahmuaiyan, that the khatians be amended accordingly, and that such other relief as may be deemed proper by the Court be given to the plaintiff. As the learned Munsif pointed out, there was no prayer for a settlement of fair rent in these suits but the learned District Judge on appeal has treated them like Suit No. 363 of 1931 as suits u/s 104-H, Ben. Ten. Act; the suits were all instituted within the period prescribed by Sub-section (2), Section 104-H, and the prayer for general relief would in the circumstances include settlement of a fair rent. And in all the four appeals the learned Judge has reduced the rent settled by the Assistant Settlement Officer for the extra areas to strictly proportionate figures. The trial Court dismissed title Suit No. 363 of 1931 and two out of the three suits brought by the other landlord on the ground that the fixed rent status shown in the record of rights was correct. The only exception was title Suit No. 142 of 1931, in which there had been an addition of area after 1322 fasli and there were two bonds in which the raiyat has described himself as kaimi, an expression which the learned Munsif took to mean the status not of a raiyat at fixed rates but of an occupancy raiyat. The lower appellate Court has differed from the trial Court as regards the status of the defendant in title Suit No. 142. The result is that before me all the suits stand on much the same footing, though S.A. No. 867 refers to what is recorded as a tenure (and not an occupancy holding) and has been argued separately from the other three appeals.
Mr. Rameshwar Misra who appears for the appellant in S.A. No. 867 has urged that the lower Courts have not properly construed a hastbud for 1285 fasli and a hastbud wasilbaki for 1307 fasli produced by him and have thus arrived at the wrong conclusion that the status of the tenure-holder is istimrari mukarrari. I can see no error of construction in connexion with these documents. So far as they show different areas and different rents, it has to life remembered that the appellant''s case, which is set out in para. 3 of his plaint, contained no suggestion that apart from the extra area assessed by the. Assistant Settlement Officer, there had been any variations in the area or rent of the tenancy such as it was sought by means of these old papers to make out. There was also no evidence which the lower Courts could accept that the tenancy was created in 1285 fasli and no proof that realizations were ever made at the rates shown in Exs. 1 and 1(a). It is therefore impossible to interfere with the finding that the defendant had an istimrari mukarrari interest in respect of the bulk of the area of the tenure. Upon this Mr. Rameshwar Misra urged that on that footing the lower appellate Court should have left the rent settled alone instead of reducing the rent for the excess area of 37 acres to a proportional amount. In the other three appeals Mr. Subal Chandra Mazumdar who appears for the landlord-appellant did not question the finding of the lower appellate Court that the holdings of the defendants are Sharahmuaiyan, though this is found in the memoranda of appeal, but urged that as the defendant did not say that the rent Settled was wrong or unjust, the reduction of the rents for the excess area to a proportionate amount was not an issue in the case and was beyond the jurisdiction of the Court. This is thus the only point that remains for decision in these four second appeals.
The learned District Judge considered the matter elaborately and apparently regarded it as a contradiction in terms that a fixed rate tenure or holding should comprise, besides an area held at a fixed rent or at a fixed rate of rent, an area carrying a rent which was liable to enhancement in accordance with the law. He pointed out that the Settlement Officer had not described any holding or tenure as partly of one status and partly of another. On a construction of Sections 50(1) and 52, Tenancy Act, the learned Judge came to the conclusion that unless the rent assessed on the excess area is proportionate to the area, the entry in the Record of Right that the rent for the excess area is liable to enhancement in accordance with the law would destroy the fixed rate status of the defendants in future, that in other words decrees upholding the defendants'' status as tenure holders or raiyats at fixed rates of rent would be automatically rendered nullities if the rent for the excess areas is not correct, that is to say, not proportionate to the areas, and in this view, even though he held against the plaintiffs that they had failed to show that the tenants belonged to a class different from that to which they had been shown in the record of rights to belong, he reduced the rents proportionately to the extra areas. It seems to me that the argument adopted by the lower appellate Court is unsound.
Turning first to Section 50(1), it is true that a holding or tenure will remain at what the Act compendiously calls "fixed rates": see for example Sections 4(a), 18 and 102(b), if whenever its rent is changed, the change is proportionate to the area, because in that ease the rate remains unchanged. But the concluding words of the provision "except on the ground of an alteration in the area of the tenure or holding" only show when "the rent or rate of rent may be increased" and in view of the words that I have underlined [italicised], cannot be taken to mean that the increase in the rent must be proportionate to the increase in the area; they clearly include an increase in the rate of rent as well. Section 52 of the Act provides that every tenant shall be liable to pay additional rent for all land proved by measurement to be in excess of the area for which rent has been previously paid by him. It is true that the section is general in its terms and does not deal specifically with tenancies coming within Section 50 of the Act, but the general rule for assessment of excess area found in Sub-section (3) of the section does not seem to be inapplicable to what may conveniently be called fixed rate tenancies in assessing rent u/s 112 of the Act, for the sub-section prohibits rent which is unfair or inequitable, and Section 112, especially when read with Section 104, does much the same by providing positively for the settlement of fair and equitable rents. Rents which have not been changed from the time of the Permanent Settlement would generally be found to be very low in these days, and if the rents for excess areas are to be proportionate they would, again speaking generally, be very low, while the lent settlement under Sections 112, 104 and 104-J is to be a settlement of fair and equitable rents for tenants of every class.
The nature of the interest acquired by a tenant in land adjoining the land settled with him by his landlord depends on the circumstances and is not necessarily of the same kind as his interest in the latter. As an extreme example of this, I may refer to the holder of a rent free holding who is entitled to, possession of all land, forming an accretion thereto but is not entitled to hold the same rent free: see Rajendra Nath Roy v. Nandlal Guha AIR 1915 Cal 106 . The rule adopted by the learned District Judge would give fixed rate tenants not only a fixed rate interest in the excess lands but also an interest at the same rate as the lands originally constituting the tenancy; and the learned District Judge has adopted this rule because he thinks that in view of Section 115, Bengal Tenancy Act, the tenants will in future be deprived of their fixed rate status merely by the entries regarding the rents as they stand in the record of rights at present. This shows a not uncommon misunderstanding of Section 115 which, when it provides that the presumption u/s 50 shall not apply to a tenancy after the particulars mentioned in Section 102, 01. (b), have been recorded, does not mean that if the entry in the record of rights regarding the tenants sharahmuaiyan status is challenged, they will not be at liberty to support that entry by falling back upon Section 50. This was clearly explained in Brajeshwary Dasi Vs. Nityananda Das, . The entries as they stand, showing the bulk of the land as sharahmuaiyan, and the excess as otherwise, will therefore not defeat themselves. The record of rights will carry a statutory presumption of correctness, and, if it be assailed, the tenants could always fall back on Section 50 in support of the entries in that record. The learned District Judge also thought that the Court must consider the rent of an individual holding or tenure as one indivisible whole, and he observed that it was
clearly on this principle, that it has been held that in a case where the rent of the holding was paid partly in cash and partly as produce rent in (sic) Section 50(1), Tenancy Act, would not apply, even though the cash rent also had remained unchanged for more than 20 years and no presumption u/s 50(2), Ben. Ten. Act, could be raised in that case.
It is not quite clear which case the learned District Judge had in mind but if, as has been suggested at the bar, that case was Lal Muhammad Khan v. Krishna Dayal Gir AIR 1919 Pat 307. it is to be observed that what was held there was that the presumption u/s 50(2) could not prevail in a case where it was admitted that the area of the holding included a portion which had been commuted to nakdi at some time previous to the last 20 years but since the Permanent Settlement, and the tenant could not identify the plots for which the sharahmuaiyan status was claimed on the basis of payment of a fixed rate of rent for the entire holding for 20 years. This will afford no ground for the view that a tenant may not have a fixed rate tenancy combined with an area the rent of which may be enhanced from time to time in accordance with the law. Such a view is in fact negatived by Hem Chandra Sen v. Garish Chandra Saha AIR 1926 Cal 710 in which questions of fair rent and enhancement of rent arose u/s 105, Tenancy Act and it was found that there was an old tenancy with a definite rent which had been held for more than 20 years at a uniform rent and additional rent was added for an additional area and in recent times the rent of the old tenancy was paid along with the additional rent for the added area. The learned Judges of the Calcutta High Court held that the addition of new area and rent made no difference in the position as regards the old area and the old rent, but that the presumption u/s 50(2), could not apply to the new land.
As regards the status of such tenants it would undoubtedly be unjust to the tenants to leave out the fixed rate or the sharahmuaiyan element from the description. The tenancies are predominantly of that character and the addition of small areas which the tenants are not entitled to hold at fixed rates does not affect that status. The grievance of the land, lords in the present cases really was that sharahmuaiyan (or istimrari mukarrari) status was given to the tenants in respect of the old areas, and as regards this'' the lower Courts have concurrently found that the grievance is not made out. Section 104-H, Tenancy Act, is a special provision of the law entitling the civil Court to interfere with the fair rents that the Revenue Authorities are to settle under Sections 104 to 104-J. It empowers any person aggrieved by an entry of a rent settled in Settlement Rent Roll etc., to institute a suit in the civil Court within six months from the final publication of the Record of Rights etc, on any of the grounds stated in Sub-section 3 and on no others. The ground taken in the present cases was ground (e) viz., that the tenant belongs to a class different from that to which he is shown in the Record of Rights as belonging. This ground has failed. The Record of Rights does not really show the tenants as holding at fixed rates in respect of the excess areas, nor is that the grievance of the plaintiffs. It need hardly be pointed out; that it was also not the grievance of the plaintiffs that the rents settled by the Settlement Authorities in respect of the excess areas were more than proportionate to the areas. Their grievance lay in the circumstance that the tenants were shown as tenants at fixed rates at all and that the rents for the old areas were accordingly treated as fixed rents, This grievance failing, authority and principle alike required that the suits should have been dismissed.
The learned District Judge considered that the words of Clause 4, Section 104-H, empowered him, on the finding that the entries of rent settled were "incorrect" to settle fair rents. But Clause (4) will only apply to suits that have been properly brought under the section. When in the suits now in question, the plaintiffs failed to make out the ground taken, viz., ground (e) in Clause (8) one would have thought that that would be the end of the matter. Even apart from the erroneous construction that the learned District Judge has put upon Clause (4), Section 104-H, it is clear that the plaintiffs having come to Court for a present or future increase of the rent, it was not open to the Court, on the plaintiffs'' failure to make out their case for an increase, to reduce the rents settled by the Settlement Authorities for the excess areas and reduce them on the finding (which as I have shown) that they were "incorrect." In my opinion, the trial Court took a just view of this matter. The tenants are primarily istimrarimukarrari or sharahmuaiyan tenants but they are not entitled (nor do they claim to be entitled) to hold the excess areas on the same terms as their old holdings. The entries of status in the Record of Bights are substantially correct and the suits should all have been dismissed. The appeals must therefore be allowed, and the suits of the plaintiffs dismissed with costs in all the Courts, except in S. A, No. 867 in which the respondents did not appear in the lower appellate Court and will therefore get their costs in this Court and the trial Court only.