Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Taser Mondal vs Prokash Chandra Mukherjee And … on 9 February, 1928
Equivalent citations: AIR 1929 Cal 31
Author: Mukerji


Mukerji, J.

1. This appeal arises out of a suit which was instituted by the plaintiff to recover arrears of rent for the years 1325 to 328. The plaintiff’s case was that the defendants held 8 bighas 2 kottas of land under them at an annual rental of 14 aris of paddy. He alleged that rent for the period covered by the suit had not been delivered notwithstanding demands and, therefore, he prayed for recovery of Rs. 360 being the total amount calculated at the rate of Rs. 5 per ari of paddy together with cesses and damages. The defendants contended that the rent of the holding was Rs. 21 and that in any case the plaintiff was not entitled to recover at a rate in excess of the said rate of Rs. 21 as that was the rate mentioned in the Road Cess Return which the plaintiff had filed under the provisions of the Cess Act 9 of 1880. The trial Court decreed the suit at the annual jama, of Rs. 21 only together with cesses and damages at the rate of 25 per cent. The learned Subordinate Judge on appeal has reversed that decision and calculating the price of 14 aris of paddy at the rate of Rs. 2 he has arrived at a certain figure on which he has added the cesses at 6 pies per rupee and damages at 25 per cent and has thus enhanced the decree that was passed by the trial Court. The defendants have then preferred this second appeal.

2. The contention that has been urged in support of this appeal is that the learned Subordinate Judge has been in error in enhancing the amount of the decree of the trial Court, because the plaintiff is precluded from suing for or recovering at any higher rate than what is mentioned in the cess return. The learned Subordinate Judge has found that the annual rent of the holding had not been changed at any time and has pointed out that it was nobody’s case that it had undergone any alteration. He has observed further that the prohibition contained in Clause (b) of Section 20, Cess Act, does not apply, because it is difficult to say that the paddy rent of 14 aris is higher than the money rent of Rs. 21 and although in the present suit the plaintiff’s claim was laid at Rs. 70 for 14 aris of paddy per year, still as the price of paddy varies from time to time though the plaintiff would get rent at a higher rate than Rs. 21 in this suit, it does not follow that if in any particular year when the price of paddy goes down the plaintiff would not get a less amount for rent in that year. The appellants contend that the decree passed by the Subordinate Judge is unsustainable in view of the clear prohibition contained in Clause (b) Section 20, Cess Act.

3. The section says:

Every holder of an estate or tenure in respect of which a return has been made as required by this chapter shall be precluded from suing for or recovering rent at any higher rate than is mentioned in such return for any land, holding or tenure included in such return, unless it be proved that the rent of such land or tenure has been lawfully enhanced subsequently to the lodging of such return.

4. There being no suggestion that there has been any enhancement of rent subsequent to the lodging of the return by the plaintiff in the present case the prohibition contained in Section 20, Cess Act, will unquestionably operate as a bar, if the section itself can at all be held to be applicable to the present case.

5. On behalf of the defendants-appellants it is contended that the plain words of Section 20, Cess Act, cover, the present case. On behalf of the plaintiff-respondent it is said that the section does not apply and reliance is placed in this behalf on the decisions of the Patna High Court in the cases of Upendra Lal v. Moti Thakur [1918] 2 Pat. L.J. 617 and Ram Gobind v. Thakur Dyal [1918] 2 Pat. L.J. 653. In the former of these two cases Chamier, C.J., said:

It appears to me to be impracticable to apply Section 20(b) to such a suit as this. Strictly speaking the plaintiffs are not suing for rent at all but for compensation, and what they entered in their return was not the rent but the annual value of the whole or part of an estate. The rate of rent which they were entitled to recover when they made their return was, and now is, not any sum in cash, but one half o whatever their share may be of the produce of holding. The reference in the latter part of Clause (b), Section 20 to the enhancement of rent suggest that the clause is intended to apply only to cash rents..

6. This was, no doubt, said in a case relating to a bhaoli batai holding in which the rent is an indefinite quantity of produce which varies from year to year and is fixed at half the produce of each year and in respect of which, under Section 4 of the Act, the money value representing the price of produce deliverable calculated on an average taken for three years is to be put down in column 5 of the return. But it having been found in the present case that the real rent is a fixed quantity of paddy, Rs. 21 that was entered in column 5 was not the rent itself but what was considered the fair value of the paddy deliverable as rent. The suit strictly speaking is not a suit for rent. The entry, therefore, in my opinion, is not a bar, and to a case such as the present Section 20, Cess Act, has no application.

7. The view taken by the Subordinate Judge, in my opinion, is correct and the appeal is accordingly dismissed with costs.

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