Loch, J.@mdashThe first ground taken in special appeal in this case is that the Collector had no jurisdiction to try this case under Act X of 1859, as the land was not used for agricultural or horticultural purposes. The question of jurisdiction is now raised in special appeal for the first time, and we think it is taken at too late a stage of the proceedings. Certain cases have been referred to, in which it is said that the plea of want of jurisdiction was admitted in special appeal, although it was not urged in the Courts below. But in those cases the question of jurisdiction was clear upon the pleadings, or from the admission of parties. It is urged that in this case also the question of jurisdiction is patent upon the pleadings, for the suit is to enhance the rent of bastu land only; and bastu land is land used for sites of houses, and not for agricultural and horticultural purposes; and reference has been made to certain judgments of this Court, viz., Kalee Kishen Biswas v. Sreemutty Jankee 8 W.R. 251, Ranee Shurno Moyee v. Revd. C. Blumhardt 9 W.R. 553,
2. The second point taken in this special appeal is that the facts found by the Judge below are not sufficient in law to establish enhancement under clause 1, section 17, Act X of 1859. This may be disposed of with another objection, viz., that the Judge was wrong in saying that the defendant''s deposition amounts to an admission of the rate of rent being rupees 5.
3. What the defendant says on being examined with regard to this land is, that the whole of it is bastu land, and that the rate of rupees 5 is prevalent. The Judge considers this statement, with the evidence regarding rates recorded in another case, which appears to have been disposed of at the same time, and be says, "the Court considers that there is evidence sufficient to show that rupees 5 is the prevailing rate for lands of a similar description held by ryots of the same class as the appellants." This finding meets all the requisitions of clause 1, section 17, Act X of 1859, but omits to find whether the land" is with similar advantages in the places adjacent," and it is urged for the appellant that the absence of these words renders it necessary that the judgment should be reversed. No doubt it would have been better had the Judge-made his judgment complete by the use of these words. But, looking at the finding of the Judge on this point, it appears to me very unlikely that he omitted to look to this point while considering the other points referred to in clause 1, section 17, Act X of 1859, though he has failed to state it distinctly. I do not think that the omission of these words is sufficient to justify a remand or reversal.
4. Another ground taken in this special appeal is that the Judge was wrong in saying that there is no evidence of the purchase by the defendant of his alleged mokurrari and mourasi tenure. We have no doubt that, when the Judge made use of the words "no proof," all that be meant to say was that there was no sufficient proof, because he himself mentions the evidence that was adduced by the plaintiff to prove this point, and in the face of that he could not have meant that there was no evidence. Under the circumstances stated above, we think this special appeal must be rejected, and we dismiss it accordingly with costs.
Macpherson, J.
5. I wish to add one word with regard to the point of jurisdiction, and to say distinctly that in my opinion the appellant would have been entitled to have this suit dismissed, if it appeared upon the face of the pleadings or the admissions of the parties, or upon the evidence, that the land is of such a nature that a suit for enhancement will not lie under Act X of 1859. But I consider that there is no evidence whatever, and that it does not appear on the pleadings that the land is of such a nature.
6. It is true that some kinds of bastu land cannot be enhanced under Act X, e.g., land in a town on which a house is built. But it is equally true that some kinds of bastu lands are liable to enhancement, and do come under the provisions of Act X of 1859, e.g., land on which stands the house of a ryot, who is engaged in cultivating the surrounding lands; and in the absence of any plea by the defendant, or of any suggestion even by him in the lower Courts that the lands, the subject of suit, belong to the former class, it certainly seems to me that it would be preposterous for us, upon a mere suggestion (for it is nothing more than a mere suggestion), of the appellants now made by them in special appeal, to send the case back in order to ascertain what kind of bastu land it is for the enhancement of the rent of which a decree has been obtained, and in order now to consider whether the Revenue Court had jurisdiction or not. Our decision in no way conflicts with any of the cases quoted by the special appellant; nor do we at all dissent from the rules to be found laid down in them.
1 Before Mr. Justice Loch and Mr. Justice Macpherson.
Kailas Chandra Sirkar (Defendant) v. Durgadas Tarafdar (Plaintiff).
[13th July, 1869.]
Act X of 1859 - Enhancement.
Lands used for building purposes situated in a town are not liable to enhancement of rent under Act X of 1859.
JUDGMENT.
Loch, J.--We think that this case is similar to Kali Mohan Chatterjee v. Kali Krishna Roy 2 B.L.R. App. 39. In that case it was held that the lands held by the defendant being used for building purposes, in fact, in the centre of a town, were not liable to enhancement of rent under the provisions of Act X of 1859. The present case is similar to that. The lands for which enhancement of rent is claimed, clearly appear from the judgment of the lower Courts to be situated on the road leading to the bazar and used for building purposes within the municipality of the town of Kistonagar. We therefore differ from the judgments of the lower Court, and decree this appeal and dismiss the plaintiff''s suit. As however the ground urged in this appeal was not taken in the lower Courts, we award no costs.
Macpherson, J.--I concur.
