P L D 1954 Dacca 21 (PLP)

IBRAHIM, J.

‑This appeal is by the defendant No. 1 and it arises out of a suit for recovery of rent, The dispute is about the rate of rent. The tenancy was created by the kabuliyat, Exh. 1 in May 1927. The rate of rent fixed by the kabuliyat was Rs.

45. It is not disputed that previous to the institution of this suit, the defendant paid rent at this rate; but in this suit his position is that the landlord is not entitled to recover at that rate inasmuch as it involves an enhancement beyond the limit allowed by section 48‑B of the Bengal Tenancy Act. It is argued that this section has retrospective effect and it applies to tenancies created before the commencement of the Bengal Tenancy (Amendment) Act (IV of 1928), by which this section and the other allied sections in Chapter VII of the Act were introduced. The basis of the entire argument is that the claim in this suit involves an enhancement of rent. The initial question is whether really there is a case of enhancement involved at all. The defendant's case is that the tenancy was created at first at the rate of Rs. 15 without any document ; then it was renewed for a period of five years from 1329 to 1333 B. S. by the kabuliyat, Exh. 1 (a) in April 1923, and that it was once more renewed by the kabuliyat, Exh. 1 under which the present rate of rent has been claimed. The learned Munsif found that the defendant had a tenancy at the rate of Rs. 15 before the tenancy created by Exh. 1 (a) ; but he did not give much importance to that inasmuch as there was no evidence to show what the terms and conditions were. Both the Courts below have found that previous to the kabuliyat, Exh. 1 the defendant held in the tenancy created by Exh. 1 (a), which was from the year 1329 to 1333 B. S. i.e. immediately preceding the term of the lease created, by Exh.

1. The lower appellate Court has come to the finding, however, that the lease created by Exh. 1 was not a confirm atory but an independent lease. The learned judge of the lower appellate Court says: "I have carefully looked into the terms of the Exh.

1. It is not a mere confirmatory lease and looking at Exh. 1 (a) I find that there was no clause over renewal of the lease under the terms specified in Exh. 1 (a). It was stated therein that the landlord could recover khas possession after the expiry of the terms of Exh. 1 (a). So there is no escape from the conclusion that by virtue of Exh. 1 (a), new settlement was taken by the tenant under the kabuliyat, Exh. 1". Now, if this position holds, good, no question of the rent having been enhanced by the kabuliyat, Exh. I can arise. Not only, there is no reason to upset this finding, but there is on the other hand, a very good reason in support of it. In another part of his judgment the learned Subordinate Judge has found that the land let out by Exh. 1 (a) was 2 pakhis, whereas the land let out under the kabuliyat, Exh. 1 was 3 pakhis. The land of the two leases was not, therefore, exactly the same. Mr. Tapendra Kumar Pal had a real difficulty in getting rid of this finding. He contended that this point was not taken into account by the learned lower appellate Court in coming to its finding that the lease was not a confirmatory lease. He, also, says that this is not the angle of vision from which the parties approached this case. May be ; but the fact is there and the finding is there that the land of the two leases was not exactly the same ; and if the lower appellate Court and the learned Munsif have overlooked it, I do not think that debars me from taking this into account. The conclusion, therefore, is that the lease was not a confirmatory lease and no question of enhancement is involved. The further argument of Mr. Pal that section 48B of the Bengal Tenancy Act is retrospective and has bearing on the issue in this suit does not, in these circumstances, call for a decision. Under the old section 48 of the Bengal Tenancy Act, before it was repealed by the Bengal Tenancy (Amendment) Act of 1928, the landlord of an under‑raiyat was not entitled to recover any rent exceeding the rent which he himself paid by more than 50 per cent. if the under‑raiyati was held under a registered deed or agreement, and by more than 25 per cent. in other cases. The under‑raiyat had a definite advantage so long as that section was in force. Evidently, but for the repeal of that section, the defendant had some answer to the plaintiffs suit. It seems that he was advised that either the benefit of that section or a similar benefit under the amended Act was available to him, and that is why he has come up to High Court in Second Appeal in spite of the fact that he lost in both the Courts below. I do not like, in these circumstances, to saddle him with costs of this appeal. A. H. Appeal dismissed.