1. The plaintiff is a tenant of a portion of S. No. 193 of the village of Sulkud. The defendants are Inamdars of S. No. 193. In 1873 the plaintiff's ancestor was given a half share in S. No. 193 at a fixed rental of Rs. 12-8-0 by the ancestors of the defendants. In 1873 the land was held by the defendants' ancestors free from liability to pay assessment. In 1940 the defendants claimed a right to enhance the rent.
By a judgment of the Supreme Court of the former Kolhapur state the claim made by the defendants was finally negatived, and the plaintiff was declared to be a permanent tenant and liable to pay Rs. 12-3-0 as rent for the land in in his possession. It was held by the Supreme Court that the defendants were not entitled to enhance the rent. The holder of the land as Inam from the Kolhapur State, died on 18-94943, and an heirship enquiry was started by the Kolhapur Government.
The Kolhapur State Government then started levying full assessment on the land S. No. 193, and they levied Rs. 37/- as assessment on the whole land. The assessment astribabie to We land held by the plaintiff was Rs. 18-8-0. It appears that the plaintiff was compelled to pay the-enhanced assessment of the land held by him. The plaintiff then filed suit No. 16 of 1950 in the Court of the Civil Judge, Junior Division, at Kagal, against the defendants for a declaration that the defendants were liable to pay assessment for half of S. No. 193 of Sulkud, and if the plaintiff was compelled to pay that assessment he had a right to recover the same from the de-fendants.
The plaintiff also claimed an injunction restraining the defendants from recovering from the plaintiff anything more than Rs. 12-8-0. The plaintiff also claimed a decree for Rs. 124-4-9 being the amount of assessment which the plaintiff had to pay the defendants having failed to pay the assessment.
2. The suit was resisted by the defendants. They contended that the defendants were as landlords entitled to receive an amount of Rs. 12-8-0 and the liability to pay the assessment should be borne by the plaintiff. They also denied the claim made by the plaintiff for Rs. 124-4-9. The defendants also raised certain other contentions such as estoppel and res judicata, but it is not necessary to refer to them in this appeal.
3. The learned trial Judge held that the plaintiff was a permanent tenant of the suit land and liable to pay the amount of Rs. 12-8-0 being the amount equal to assessment. He further held that the defendants were not liable to pay the assessment which was paid by the plaintiff for the years 1943-44 to 1949-50. The learned trial Judge did not record any finding on the question as to whether the plaintiff was liable to pay assessment plus rent equivalent to assessment. He held that there was no bar of estoppel or res judicata to the suit. The learned trial Judge on the view taken by him dismissed the plaintiff's suit.
4. There appears to be some obscurity in the judgment of the learned Jutige. The principal question in dispute between the parties was whether the plaintiff was liable to pay assessment levied by the Government besides the amount of Rs. 12-8-0; but the learned trial Judge did not record any finding on the issue which arose in that dispute. He appears to have been of the view, as expressed in his judgment, that the plaintiff must pay the entire assessment of Rs. 18-8-0 as it exceeds the amount of fixed rent.
In coming to that conclusion the learned Judge relied upon trie judgment of this Court reported in -- 'Ladhuram Manormal v. Sale Mahomed', : AIR1925Bom168 . The learned trial Judge appears to have held that even though the liability of the plaintiff was by rea-son of the decree passed by the Supreme Court of Kolhapur limited to pay Rs. 12-8-0, as the assessment was levied and the assessment attributable to the land held by the plaintiff amounted to Rs. 18-8-0 the plaintiff was liable to pay Rs. 18-8-0.
5. Against the decree passed by the trial Court an appeal was preferred to the District Court at Kolhapur. Tne learned Assistant Judge who heard the appeal confirmed the decree passed by the trial Court and dismissed the appeal. The learned appellate Judge held that it was clearly the intention of the parties to the original agreement that the landlord must receive Rs. 12-8-0 by way of rent for the suit land, and if effect has to be given to the plain intention of the parties the plaintiff must pay the assessment. He observed :
'If as originally contended by the plaintiff the defendants are made to pay the assessment, the position would be anomalous. The defendants will have to pay Rs. 6 annually for getting nothing in return in order to maintain the possession of the plaintiff as a permanent tenant. I do not think that such a situation was ever in the contemplation of the parties. Having regard to the facts and the circumstances disclosed by the evidence on record, I hold that the plaintiff is liable to pay the assessment of the suit land, and not the defendants.'
On that view the learned appellate Judge confirmed the decree passed by the trial Court. It is evident from the observations made By the learned appellate Judge that he was of the view that the plaintiff must pay not only Rs. 12-8-0 but he must also pay the amount of assessment which was levied in respect of the land. The plaintiff has now come to this Court in Sacond appeal.
6. Undoubtedly the rent which was agreed to be paid by the plaintiff's ancestors was Rs. 12-8-0. The agreement between the plaintiff's ancestor and the defendants' ancestor would contemplate a mutual covenant. The plaintiff's ancestor was liable to pay Rs. 12-8-0 and no more, and the defendants' ancestor was liable to recover from the plaintiff Rs. 12-8-0 and no more. That again is the effect of the judgment of the Supreme Court of the Kolhapur State.
But since the judgment of the Supreme was delivered circumstances have transpired which have completely displaced what must have been the original intention of the parties. For the privilege of holding the land the defendants are now required to pay Rs. 18-8-0 for half share of the rent for the land which is in the occupation, of the plaintiff. The effect thereof is that where-as the delendants recover Rs. 12-8-0 from the plaintiff, they have to pay Rs. 18-8-0 to the State.
If a strict effect is to be given to the contract between the parties as confirmed by the Supreme Court of Kolhapur State, the defendants must go on paying to the landlord Rs. 18-8-0 every year and must stand to lose Rs. 6/- every year for the bare privilege of holding the land. Such a position would be inequitable. The inequity of such a view was considered in a judgment of this Court was referred to by the Courts below : AIR1925Bom168 (A).
In that case it was held by the Court that where the Government had increased the assessment of the land, and the assessment exceeded the amount of rent, the Court was on equitable considerations entitled to call upon the tenant to make good to the landlord the amount he had to pay to the Government as assessment in excess of the rent which was actually recovereg by him. The principle of that case would in my judgment apply to the facts of the present case; and the defendants would be entitled to recover the amount of assessment, if it exceeds the amount of rent which is payable by the plaintiff.
7. Mr. Paranjape who appears on behalf of the defendants has contended that the liability to pay assessment is both on the plaintiff and the defendants. I am unable to accept, that contention. Section 136, Bombay Land Revenue Code makes it abundantly clear that the primary liability to pay assessment is on the superior holder, where the land is held by a tenant.
It is true that under Sub-section (2) of Section 136 arrears of land revenue may be recovered from a tenant; but by the second proviso to the section a right is given to recover the amount paid by him from the superior holder. That clearly shows that the liability to pay land revenue is upon the landlord, and is not upon the tenant.
8. Mr. Paranjape then contended that it must have been the intention of the parties when the agreement was entered into, that the landlord was to recover Rs. 12-8-0 under any circumstances and no more and no less, and therefore when the land revenue was increased or additional land revenue was imposed, the tenant should satisfy that liability. Now it would be at this stage entering into the region of speculation to attempt to decide the question as to what must have been the intention of the parties at the time of entering into the agreement.
The Legislature having for the first time imposed liability upon the landlord or the superior holder to pay the assessment after the agreement of tenancy, it would be equitable to hold that the parties contemplated that if any assessment was to be paid, it should be borne by the landlord, and not by the tenant.
In the absence of anything which indicates an intention to the contrary, in the circumstances existing I am prepared to hold that the liability to pay assessment--which is a statutory liability--continued to remain imposed upon the landlord, and was not imposed upon the tenant.
There is nothing in the circumstances of the case which suggests that the liability for payment of assessment or land revenue partially or wholly was intended to be imposed upon the tenant at the date when the agreement was entered into. In my view therefore the equitable principle which has been enunciated in 'Ladhuram's case (A)' must apply to the present case.
9. Mr. Paranjape has contended that it is not open to the Court to grant a declaration in a form other than the one in which it has been claimed by the plaintiff. In my view the contention cannot be seriously considered. The court has jurisdiction to adjust the rights of the parties as ascertained by it and to grant a declaration, accordingly, if it is necessary in the ends of justice to do so, and the Court's jurisdiction cannot be restricted because the plaintiff has asked for a more extensive declaration cr a declaration in a different form.
10. I therefore set aside the decree passed by the Courts below, and declare that the plaintiff is liable to pay assessment in respect of the portion of the land S. No. 193 held by him, if the assessment exceeds Rs. 12-8-0. If the plaintiff pays the assessment, he will not be required to pay the amount of rent which has been declared to be Rs. 12-8-0. If the amount of assessment is less than Rs. 12-8-0 the plaintiff must pay to the defendants the balance so as to make up the amount of Rs. 12-8-0.
11. The claim for recovery of Rs. 124-4-9 cannot be sustained on the declaration given by me. As to what amount, if any, the plaintiff would be entitled to would depend upon the decision of several questions of fact which do not appear to have been canvassed in the Courts below. It is the case of the defendants that when plaintiff paid the full amount of assessment they have nob recovered the amount of rent. In order to avoid any further investigation into this dispute for at small amount Mr. Gumaste on behalf of the plaintiff has not insisted upon investigation into the claim.
12. Subject to the modification hereinbeforementioned in the decree passed by the Courts below the claim for Rs. 124-4-9 and the claim forinjunction are dismissed. In t'e Courts belowthere will be no order as to costs. In this Courtthe plaintiff will be entitled to half the costs ofthis appeal.
13. Order accordingly.