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Bisheshar Nath Vs. Abdul and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All333
AppellantBisheshar Nath
RespondentAbdul and anr.
Excerpt:
- - we would only like to add that if the procedure laid down in sections 137 to 139 were followed, and that remedy is optional and not obligatory, there would be no further necessity for the institution of a suit for recovery of rent, because the zamindar will ultimately get an order for the payment of the rent and costs, and such an order would have the effect of a decree for arrears of rent......accepted. after this the zamindar brought the present suit for arrears of rent on the basis of the money equivalent of the produce. the plea taken in the written statement now was that no suit was maintainable because there had been no appraisement of the produce. the assistant collector following a ruling of the board of revenue in the case of muhammad bashir v. nathu s.d. no. 3 of 1929, held that the suit was not maintainable. the district judge, although he was not inclined to agree with the ruling, followed it and maintained the dismissal of the suit. the opinion of the board of revenue, as expressed in that case, is that it is only when the money equivalent of the produce has been settled, as provided for in sections 137 to 139, that a suit for recovery of rent can be maintained......
Judgment:

Sulaiman, C.J.

1. This is a plaintiff's appeal arising out of a suit for arrears of rent for the years 1332 to 1335, Rasli. It appears that in 1925 when the crops were standing they were distrained by the zamindar on the ground that cash rents were payable. A suit was filed by the tenants that the distraint was illegal as the rent was not cash, but was produce rent. The Assistant Collector held that the distraint was illegal, decreed the claim and released the crops. This part of the decree was affirmed on appeal though on appeal the finding that there had been a payment of the rent was not accepted. After this the zamindar brought the present suit for arrears of rent on the basis of the money equivalent of the produce. The plea taken in the written statement now was that no suit was maintainable because there had been no appraisement of the produce. The Assistant Collector following a ruling of the Board of Revenue in the case of Muhammad Bashir v. Nathu S.D. No. 3 of 1929, held that the suit was not maintainable. The District Judge, although he was not inclined to agree with the ruling, followed it and maintained the dismissal of the suit. The opinion of the Board of Revenue, as expressed in that case, is that it is only when the money equivalent of the produce has been settled, as provided for in Sections 137 to 139, that a suit for recovery of rent can be maintained. Recently a Bench of this Court in the case of Indrajit Partap Bahadur Sahi v. Sewak Rai : AIR1932All149 , has come to the conclusion that where rent is payable in kind by division of tbo produce and the rent is in arrears, a suit; for the money equivalent of such rent lies and can be brought within three years.

2. We agree with the view expressed in the view ease and with the reasonings adopted therein. We would only like to add that if the procedure laid down in Sections 137 to 139 were followed, and that remedy is optional and not obligatory, there would be no further necessity for the institution of a suit for recovery of rent, because the zamindar will ultimately get an order for the payment of the rent and costs, and such an order would have the effect of a decree for arrears of rent. All that then would be necessary for the zamindar would be to execute such a decree. When the Legislature has advisedly used the word 'may' in Section 138, Agra Tenancy Act, we cannot read it as if the word were 'shall.' Nor can we take it that the procedure laid down in Sections 137 to 139, is exhaustive and is the only possible remedy open to a zamindar for such cases. If this view were upheld, the result would be that, although in ordinary cases of cash rents a zamindar would have a right to bring a suit within three years of the date when it became due, he would have no such extended period.

3. As pointed out by the Bench, Section 132 of the Act gives him a right to sue to recover arrears of rent without any limitation. Furthermore, the period of limitation prescribed for suits for arrears of rent including one for the recovery of money equivalent of such rent is laid down to be three years from the date when the arrears became due (vide 4th Schedule. Group A, Serial No. 4). If the Legislature had intended that the only remedy open to a zamindar is to proceed according to the method prescribed by Section 137 to 139, then there was no occasion to prescribe a period of three years for suits for arrears of rent for the money equivalent of such rent. We think that the view taken by the Bench of this Court is correct and we fully agree with that view. It is not necessary for us to speculate what view the Board of Revenue may, hereafter on reconsideration, take in cases in which revisions lie to that Board. In cases in which appeals lie to the District Judge and ultimately to the High Court, it is obviously the duty of Assistant Collectors to follow the rulings of this Court. The District Judge having found that the defendants had not paid anything towards the rent for the years in suit, that finding has naturally not been challenged in second appeal. We accordingly, allow this appeal and setting aside the decree of the lower appellate Court and the decree of the first Court in part, send the case back to that Court through the lower appellate Court for determination of the money equivalent of the produce rent. Parties will be at liberty to produce fresh evidence. Costs in this Court and the lower appellate Court will abide the event.


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