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37G ENHANCEMENT.

Lkcturk designated rather according to the class to which they

1 belong than to the tenure upon which the lands are held

by the ryots or tenants.1

Different tenures prevailed in different parts of the country." It is impossible with our present information to give the details of the various local tenures, and many of those which have come under notice do not present any features specially characteristic: we have already seen that the main distinction turns in many cases upon the mode in which rent is paid and upon the hereditary or transferable character of the holdings: so that for our present purpose it is very possible that fuller details might not add much to our information as to the specific varieties of tenure prevailing in Bengal. Enhancement I have now given some account of the relation between of rent. the zemindar and the holders of subordinate interests in

the land. I proceed to give some further details upon the subject. And first as to the amount of rent: we have seen generally what was its amount, and the mode of payment; we have now to consider when it could be increased." We have already discussed this subject to some extent in treating of the talookdar's position: but I may here notice a few of the cases upon that part of the subject. The main principle laid down with respect to talookdars is that they are not to be enhanced to the same extent as ryots, but only so as to bring their rent up to that of the neighbouring talookdars, and so as to leave

1 See for details Whinfield's Landlord and Tenant, 70 to 72.

• See Regulations IV of 1794 and X of 1800.

* For the general principles as to enhancement, see Radhika Clio wdhrain v. Bamasundari Dasi, 4 B. L. R., 1*. C, 8, at p. 10; 13 W. B, P. 0, 11, B.C.

ENHANCEMENT. 377

them something after paying their rent.1 This margin of Lkoturk profit according to the cases should be from one-third to one- — sixth of the gross rent.' Similarly, it has been held that a howaladar cannot enhance his nim-howaladar to the same extent as his own rent has been enhanced, but only up to the ordinary rate for similar land." We have also discussed the nature of holdings at a fixed rent. Again, we shall consider in connexion with the Sale Laws the statutory power of a purchaser at a sale for arrears of revenue to enhance the rent. It only remains to notice those cases which are not included in any of the foregoing categories. And these may be generally described as cases in which the holding has commenced since the Permanent Settlement, and is not protected by contract or custom. There are however holdings, which, although they may have commenced since the Permanent Settlement, are in a more advantageous position. Thus, section 4 of Act VIII of 1869 (B.C.) provides, with regard to ryots, that whenever in any suit under that Act it shall be proved that the rent at which land has been held by a ryot has not been changed

1 Dyaram v. Bhobindur Naraen, 1 Sel. R., 139. Gopee Mohun Thakoor v. Radha Mohun Ghose, 2 Sel. R., 17. Jadub Chunder Haldar r. Ishoree Lusbkur, W. R. (1864), Act X, 74. Huro Soonduree Chowdhrain v. Anund Mobuu Ghose Chowdhry, 7 W. R., 459. Mohima Chunder Dey v. Gooroo Dass Sein, 7 W. R., 285. Soorasoouderee Dabea v. Gopal Lall Thakoor, 19 W. R., 143. Baboo Dhunput Singh v. Gooman Singh, 11 Moore's I. A., 433, at p. 468 ; 9 W. R., P. C, 3, s. c. Khajah Assauoolah v. Obhoy Chunder Roy, 13 Moore's I. A., 317, at p. 324.

• Gouree Pershad Doss r. Ranee Shurno Moyee, 6 VV. R., Act X, 41. Munee Kurnika Chowdhry v. Anund Moyee Chowdhry, 10 W. R., 245. Fifteen per cent, according to Rani Swarnamayi v. Gauri Prasad Dass, 3 B. L. 11., A. C, 270; and ten per cent, and charges according to Pnnchanund v. Hurgopal Bhadery, 1 Sel. R., 145.

* Mirteujae Mookerjee v. Manick Chunder Dass, 7 Sel. U., 430.

378 ENHANCEMENT.

Lecturs for a period of twenty years before the commencement of — the suit, it shall be presumed that the land has been held at that rent from the time of the Permanent Settlement, unless the contrary be shown, or unless it be proved that such rent was fixed at some later period. And when a ryot has held lands from the Permanent Settlement at fixed rates, he is entitled to a pottah at those rates by section 3. By sections 1G and 17 of the same Act, the same presumption as to holding from the Permanent Settlement is extended to talooks and other tenures, the rent of which, if dependent talooks or intermediate interests of a permanent and transferable kind, cannot be enhanced. Ryota having a right of occupancy are not liable to enhancement of the rent previously paid by them, except on some one of the following grounds: first, that the rate of rent paid by such ryot is below the prevailing rate payable by the same class of ryots for land of a similar description and with similar advantages in the places adjacent; second, that the value of the produce or the productive powers of the land have been increased otherwise than by the agency or at the expense of the ryot; third, that the quantity of land held by the ryot has been proved by measurement to be greater than the quantity for which rent has previously been paid by him.1 The Great Rent Case" explains the mode in which the enhanced rents should be ascertained, having regard to the provisions of the Act which enact that ryots having rights of occupancy, but not holding at fixed rates as described in the two preceding sections, are entitled to receive pottahs at fair and equitable rates; the rates previously paid being deemed fair and equitable until proof to the

1 Act X of 1859, s. 17. Act VIII of 1869 (B.C)., s. 18.

'B. L. R., Supp. Vol., 202. See Regulation V of 1812, 88. 7, 8.

ABATEMENT. 379

contrary in a suit under the Act.1 The prevailing rates here Lecturk referred to are in most cases the village or pergunnah rates. — These pergunnah and village rates can still be ascertained in most parts: although in some places it is difficult to fix upon any rate from want of uniformity2

The occupancy ryot is also entitled to claim an abatement from his rents on grounds corresponding to those on which the rent can be enhanced; namely, if the area of the land has been diminished by diluvion or otherwise; or if the value of the produce or the productive powers of the land have been decreased by any cause beyond the power of the ryot; or if the quantity of land held by the ryot has been proved by measurement to be less than the quantity for which rent has been previously paid by him.3

It would seem that occupancy ryots can neither be made liable to enhancement nor have the benefit of an abatement in case of dispute without a suit under the Act. In other cases of enhancement the parties are left to the ordinary law* It has been held, with reference to the right to enhance, that one of several joint proprietors may sue to enhance his share of rent without having had a partition (butwara) of his holding ;5 but this, according to the principle of later cases, would only be allowed when the plaintiff had received separately his share of the rent. And a farmer under a lease for a term of years may enhance.6

* Act X of 1859, a. 5. Act VIII of 1869 (B.C.), s. 5.

* Kobinson's Land Tenures, 27.

* Act X of 1859, s. 18. Act VIII of 1869 (B.C.), s. 19.

* llanoo Shurno Moyee v. Blumhardt, 9 \V. R., 552. Chunder Coomar Banerjee v. Azeemooddeen, 14 W. R., 100.

* Troylochotaran Chowdhry v. Muthoora Mohun Dey, W. R. (1864), Act X, 41.

* Rushton v. Girdharoe Tewaree, Marshall, 331.

380 MEASUREMENT.

LEmmc By Act X of 1859, section 13, and Act VIII of 1869 (B.QX — section 14, even the ordinary ryot is to some extent protected from enhancement. These sections provide that " no under-tenant or ryot, who holds or cultivates land without a written engagement, or under a written engagement not specifying the period of such engagement, or whose engagement has expired or has become cancelled in consequence of the sale for arrears of rent or revenue of the tenure or estate in which the land held or cultivated by him is situate, and has not been renewed, shall be liable to pay any higher rent for such land than the rent payable for the previous year" unless a notice shall have been served upon him as prescribed in the section "specifying the rent to which he will be subject for the ensuing year, and the ground on which an enhancement of rent is claimed." It has been held that under these sections a ryot's rent can only be enhanced up to a reasonable rate :1 and of course it cannot be enhanced at all if the terms of the pottah exclude enhancement.' A claim to enhance assumes the existence of some right of occupation in the tenants." Ki ht of Measurement is spoken of in connexion with enhance

meaaurement. ment and abatement of rent. The landlord has a right to measure the land held by his tenant. We have seen that tenants very frequently in former times held more land than was avowed and paid for, and that the threat of measurement was an effective mode of exaction.*

1 Bakranath Mandal c. Binodram Sen, 1 B. L. IL. F. B., 25; 10 W. R., F. B., S3, B.c.

* Punchanun Bose v. Peary Molmn Deb, 2 W. R., 225.

3 Baboo Dhunput Singh v. Qooman Sing, 11 Moore's I.A., 433, at p. 455. Bamasoondery Dassyah c. Radbicka Chondhrain, 13 Moore's I. A, 248

♦ For the mode of measurement, see Wbinfield's Landlord and Tenant, 178.

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