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Durga NaraIn Singh Vs. Gurdeen - Court Judgment

LegalCrystal Citation
Subject Tenancy; Civil
CourtAllahabad
Decided On
Reported inAIR1948All292
AppellantDurga NaraIn Singh
RespondentGurdeen
Excerpt:
.....of the other. as this status did not determine the rights only in 1344 fasli but in subsequent years also, it does not appear to be reasonable that any temporary failure of crops,..........1939, (xviii of 1989) the claim could be decreed or not. the sub-divisional officer held that the rent payable by the defendant in 1344 fasli was less than rs 500/- and so he dismissed the suit. the plaintiff went up in appeal. learned district judge of farrukhabad, mr. nigam, upheld the decision of the trial court and dismissed the appeal on 80th january 1948. the plaintiff, therefore, comes in second appeal to this court. mr. nigam held that in determining the rent payable by the respondent the remissions granted to him should be deducted.8. in civil revision no. 419 of 1945 the plaintiff obtained three decrees for arrears of rent against the respondent and put them into execution. on 10th june 1938, the execution of the decrees was stayed under the provisions of section 2, u.p. stay.....
Judgment:

Bind Basni Prasad, J.

1. We have before us Second Appeal No. 946 of 1943 and civil Revision No. 419 of 1945 which have been referred by a learned single Judge to a Full Bench. The parties in both the cases are the same, but they arise out of two different proceedings. A common question of law is involved in both of them and this judgment will govern the second appeal and the revision both.

2. In Second Appeal No. 946 of 1943 Capt. Raja Durga Narain Sing, who is now dead and is represented by his son, applied under Section 81, Agra Tenancy Act, 1926, to the Tahsildar for the issue of a notice to the defendant for payment of arrears of rent and for his ejectment in case of default. The defendant contested the notice and further proceedings took place in the Court of the Sub-Divisional Officer, Kanauj, as provided by law. As the claim was in respect of arrears of rent the realization of which had been stayed, the question arose whether in view of Section 5, U.P. Stayed Arrears of Rent (Remission) Act, 1939, (XVIII of 1989) the claim could be decreed or not. The Sub-Divisional Officer held that the rent payable by the defendant in 1344 Fasli was less than Rs 500/- and so he dismissed the suit. The plaintiff went up in appeal. Learned District Judge of Farrukhabad, Mr. Nigam, upheld the decision of the trial Court and dismissed the appeal on 80th January 1948. The plaintiff, therefore, comes in second appeal to this Court. Mr. Nigam held that in determining the rent payable by the respondent the remissions granted to him should be deducted.

8. In Civil Revision No. 419 of 1945 the plaintiff obtained three decrees for arrears of rent against the respondent and put them into execution. On 10th June 1938, the execution of the decrees was stayed under the provisions of Section 2, U.P. Stay of Proceedings (Revenue Courts) Act, 1937 (IV of 1937). On the expiry of 4hat Act, the plaintiff applied for the revival of the execution proceedings. The respondent objected and contended that under Section 8, Stayed Arrears of Rent (Remission) Act, 1989 (XVIII of 1939) the execution application should be dismissed and he should be discharged from the liability. It was his case that the rent payable by him in 1844 Pasli was less than Rs. 500/-. The trial Court upheld the objection and the execution application was dismissed. In appeal the learned District Judge. Mr. Desai, who had succeeded Mr. Nigam, disagreed with the view taken by the trial Court and on 13th May 1944, he allowed the appeal and directed the execution proceedings to be revived. The respondent, who is the applicant, comes in revision against that order. Mr. Desai held that in determining the rent payable in 1344 Fasli the remissions granted to the tenant should be ignored.

4. Section 3, United Provinces Stayed Arrears of Rent (Remission) Act, 1939; provides:

Notwithstanding anything contained in the Agra Tenancy Act, 1926, or the Oudh Sent Act, 1886 or any other Act for the time being in force, bat subject to the provisions of Section 5, all suits or applications for the recovery of arrears of rent, which have been stayed under the provisions of the United Provinces Stay of Proceedings (Revenue Courts) Act, 1937, shall be dismissed and no Court shall entertain any suit or application for the recovery of arrears of rent which if instituted or made during the period in which the United Provinces Stay of Proceedings (Revenue Courts) Act, 1937' is in force, would have been stayed under the provisions of that Act:

5. Section 5 makes the provisions of Section 3 inapplicable,

to a suit or application instituted or made against any person the rent payable by whom in the year 1344 Fasli was more than five hundred rupees or to any person who in the year 1937 was assessed to income-tax under the Income-tax Act. 1922, or under the income-tax law of any Indian State, or to any person whose land was assessed in the year 1344 Fasli, to a local rate of more than twenty five rupees.

6. It is common ground of the parties that the total rent payable by Gur Din in 1344 Fasli as recorded in the Khatauni exceeded Rs. 500/-. By virtue of remissions granted by the Provincial Government under Section 73, Agra Tenancy Act, 1926, however, the liability for the rent due from him in the year 1344 Fasli was reduced to Rs 344/- and odd. The sole question for determination is whether on a true interpretation of the words 'rent payable in the year 1344 Fasli occurring in Section 5, U.P. Stayed Arrears of Rent (Remission), Act, 1939, the remissions should be ignored or should be deducted from the rent normally payable by n tenant in 1341 Fasli. My answer is that the remissions should be ignored in determining the rent. It is necessary to mention briefly the history of these remissions. About the year 1932, owing to a steep fall in prices the Provincial Government granted remissions of rent to the tenants, purporting to act under Section 73, Agra Tenancy Act, 1926. In 1937 the legality of those remissions was questioned before this Court and in Mahomed Abdul Qaiyum v. Secy of State : AIR1933All158 it was held that the remissions were in violation of the provisions of Section 73. After this decision, the Provincial Legislature passed the U.P. Regularization of Remissions Act, 1988 (XIV of 1938). By Section 2 of that Act it was provided that notwithstanding anything in the Agra Tenancy Act, 1926, or in any other law for the time being in force where rent has been remitted on account of any fall in the price of any agricultural produce which took place before the commencement of that Act, under the orders of the Provincial Government or any authority empowered by it in that behalf, such order, whether passed before or after the commencement of the Act, shall not be called in question in any civil or revenue Court. The legality of this Act was also questioned and the matter went up to the Federal Court. The Federal Court held in United Provices v. Atiqa Begum that the U.P. Regularization of Remissions Act, 1938, was intra vires of the Provincial Legislature and that it was valid.

7. Another chapter in the history of which mention may be made, relates to the stay of proceedings in the revenue Court. On 25-9-1937, U.P. Stay of Proceedings (Revenue Courts) Act, 1937 (U.P. Act IV of 1937) came into force. Section 2 of that Act provided for the stay of certain proceedings. The proceedings relating to the arrears of rent were one of them. In 1939 the Provincial Legislature passed the U.P. Stayed Arrears of Rent (Remission) Act. The provisions of Sections 3 and 5 of that Act have already been given above. A perusal of this Act will show that it divided the tenants into two classes : (1) the bigger tenants paying more than Rs. 500 per annum as rent or those who were assessed to income-tax or those who were assessed to a local rate of more than Rs. 25 and (2) the smaller tenants paying Rs. 500 or less per annum as rent and not paying any income-tax or those paying local rate of Rs 25 or less. No relief was granted by this Act to the bigger tenants and the proceedings which had been stayed could be revived against them. Relief was, however, granted to the smaller ones by providing that all suits or applications for the recovery of arrears of rent which had been stayed by the provisions of the U. P. Stay of Proceedings (Revenue Courts) Act, 1937, shall be dismissed. In Surya Pal Singh v. Chiranji : AIR1944All170 . the question arose whether the rent payable by a tenant within the meaning of Section 5 of the Act is the rent the holding which is the subject of the suit or application, or the total rent of all the holdings in which he has an interest and whether the rent payable by one of a number of co-tenants is the whole rent of the joint holding or only his share of that rent. The majority of the Full Bench held that the rent payable by a tenant within the meaning of Section 5, Stayed Arrears of Rent (Remission); Act, 1939, is his share of all the rents of all the holdings in which he is a tenant. Allaop J. observed as follows in his examination of the provisions of Section 5:

Local rates are proportionate to an assumed profit from the land assessed. The rate of rent depends generally upon the benefit which the tenant expects to reap from his holding. It seems clear that the payments of income-tax or of certain amounts of local rates or rent were used by the legislature as measures of a tenant's financial status. In my judgment it follows that the legislature used the term payable in the sense of the ultimate liability to pay because it is that liability alone which could be any guide to a man's financial position, that is, any indication of the profit which would accrue to him from his tenancy.

I respectfully agree with the above observations.

8. In Dwarkadhishji Maharaj v. Bipti 34 A.I.R. 1947 All. 63 the question arose whether the words 'rent payable in 1344 Fasli'. included the rent of previous years which was in arrears in 1344 Fasli. It was held that the word 'rent' in Section 5 of the Act refers merely to current rent and not to the rent which was in arrears in 1344 Fasli.

9. It is thus clear that the words 'rent payable in 1344 fasli' do not mean the rent for which a tenant is liable in 1344 Fasli. They should be interpreted to determine the financial status of the tenant.

10. There is another aspect of the case. The U.P. Stayed Arrears of Rent (Remission) Act, 1939 (U.P. Act, XVIII of 1939) was enacted almost simultaneously with the U.P. Tenancy Act, 1939 (U.P. Act XVII of 1939). The words 'rent payable' occur in the latter Act also. Section 93, U.P. Tenancy Act, 1939, provides that:

The rent payable by a tenant shall be presumed to be the rent previously payable by him until it is varied in accordance with the provisions of Section 98.

11. The rent payable by a tenant in 1344 Fasli is, therefore, the rant payable by him in the last preceding year, namely, 1343 Fasli, and for that year the rent payable by Gur Din was admittedly more than Rs. 500.

12. Section 98, which is referred to in Section 93, U.P. Tenancy Act, 1939, prescribes only three modes of which the rent payable may be varied, namely:

(a) by registered agreement;

(b) by decree or order of a revenue Court; or

(c) by a compromise filed in a suit or proceeding, provided that such compromise is filed in the Court which is competent to fix, commute, abate or enhance the rent.

It will be seen that remission granted under Section 123 or 126, U.P., Tenancy Act, is not mentioned in Section 98 as one of the modes for varying the rent payable. The word 'only' occurring in Section 98 clearly indicates that the three modes mentioned therein are the only ways by which the rent payable can be varied.

13. Viewed in the light of the above provisions in the U.P. Tenancy Act, it followed that the words 'rent payable in the year 1344 Fasli' occurring in Section 5, U.P. Stayed Arrears of Rent (Remission) Act, 1939, mean the rent without deducting the remissions granted in that year.

14. Learned Counsel for Gur Din contends that if the Legislature had intended that the remissions should be ignored in determining the rent payable in the year 1344 Fasli, if would have clearly said so in Section 6 of the Act as it did in Expln. I of Sub-section (2) of Section 2, Agriculturists' Relief Act, 1934, in which the definition of the term 'agriculturist' is given. Such an argument was advanced also in Surya Pal Singh v. Chiranji 31 : AIR1944All170 ., and Alleop, J. observed:

I do not think it is safe to assume that the Legislature had the other Acts in mind when it passed the Stayed Arrears of Rent (Remission) Act.

The Agriculturists' Relief Act was passed five years prior to the U. P. Stayed Arrears of Rent (Remission) Act, 1939, and was an Act of quite a different character. Where the same expression has been used in allied Act passed within a short space of time, it is permissible to interpret them in the same manner on the principle that the Legislature speaks in the same language. But where the difference in time between the enactment of two Acts is several years and the subjects with which they deal are different, it would not be safe to rely upon the provisions of one Act in interpreting the provisions of the other.

15. No reported decision of this Court has been placed before us by learned Counsel for Gur Din. He has referred to a decision of the Board of Revenue, Suryapal Singh v. Khuman Singh ('44) 1944 A.W.R. Rev. 124, No doubt this decision supports his point. It was held in that case that the rent payable within the meaning of Section 5, Stayed Arrears of Rent (Remission) Act, 1939, is the rent after deducting the re-missions allowed on account of the slump in prices. A perusal of the decision will show that the consideration of the financial status of the tenant was not kept in view. I find it difficult to agree with the reasonings given in it.

16. Learned Counsel has also relied upon certain unreported decisions of this Court. We sent for the records of those crises and I proceed to deal with them.

17. The first case is second Appeal No. 486 of Suryapal Singh v. Megh Singh Second Appeal No. 486 of 1942, D/-28-4-1944, decided by a Division Bench on 28 4-1944. It will be noted that this decision was given two days after the judgment in the Full Bench case in Surya Pal Singh v. Chiranji : AIR1944All170 . and one of the Hon'ble Judges of the Full Bench was a party to the Division Bench also. Relying upon the Full Bench decision, the Division Bench held that the words 'rent payable' mean rent which is actually to be paid* for the year 1344 Fasli. The Full Bench had not the question before it whether in determining the rent payable the re-missions should be included or excluded, and I find it difficult to understand how the decision in the Full Bench case was cited as an authority for the point decided by the Division Bench. With great respect I would express my dissent from the principle laid down in this Division Bench case.

18. The second case relied upon is Second Appeal No. 1767 of Megh Singh v. Surya Pal Singh Second Appeal No. 1288 of 1941,D/-55-1944, decided by a learned single Judge on 5-5-1944. It was held that the remissions granted to a tenant should be deducted from the amount of rent entered in column 8 of the khatauni in order to determine the rent payable by a tenant for the purposes of Section 5, U.P. Act, XVIII of 1939. The various aspects discussed above were not placed before the Court in that case. With great respect I differ from the view taken in it.

19. The third case is Second Appeal No. 1288 of Kedar Nath v. Sia Ram Second Appeal No. 1288 of 1941, D/-23-12-1942, decided by a learned single Judge on 23-12-1942. In this case also it was held that the rent payable within the meaning of Section 5 of the Act means the rent which remains due after the remissions. In this case also the various aspects discussed above have not been dealt with and I respectfully disagree with the view taken in it.

20. Other cases referred to by learned counsel for Gur Din were Execution second Appeal No. 225 of Megh Singh v. Sia Ram Second Appeal No. 225 of 1942, D/-16-3-1944, decided by a Division Bench on 16-3-1944, civil Revn. No. 143 of Surya Pal Singh v. Ganga Prasad Civil Revn. No. 143 of 1942,D/-12-3-1943, decided by a single Judge on 12-3 1943, and Ex. Second Appeal No. 166 of Ganga Prasad v. Surya Pal Singh Ex. Second Appeal No. 166 of 1942, D/-8-9-1943, decided by a Division Bench on Section 9-1943. None of these cases is relevant to the point under consideration.

21. In my judgment, in determining the rent payable by a tenant in the year 1344 Fasli within the meaning of Section 5, U.P. Stayed Arrears of Rent (Remission) Act, 1939, the remissions gran-ted in that year should be ignored. In this view of the case, the rent payable by Gur Din in 1344 Fasli exceeded Rs. 500/-. Hence I would allow the Second Appeal No. 946 of 1943 setting aside the decisions of the two Courts below and decree the suit with costs. The only other point raised in defence was one of limitation, but this plea was abandoned 'before the trial Court. Civil Revn. No. 419 of 1945 should be dismissed with costs.

Malik, C.J.

22. I have read the judgment of my brother Bind Basni Prasad. I agree with him that Second Appeal No. 946 of 1943 should be allowed, the decrees of the lower Courts should be set aside and the plaintiff's suit decreed with costs. I further agree that civil Revn. No. 419 of 1945 should stand dismissed with costs.

23. The only point in these two cases is whether in Section 5, U.P. Stayed Arrears of Rent (Remission) Act, 1939 (XVIII of 1939) the rent payable by a person in the year 1344 Fasli means the rent as entered in the jamabandi or after the remissions in any particular year that may have been granted by the Government on one of the grounds on which rent can be remitted. The rent payable in the year 1344 Fasli has been taken to determine the status of a tenant to entitle him to the benefit of that Act. If the rent payable by him was more than Rs. 500/-, or if in 1937 he was assessed to income-tax, etc, then he was not entitled to the benefit of Section 3 of the Act. As this status did not determine the rights only in 1344 Fasli but in subsequent years also, it does not appear to be reasonable that any temporary failure of crops, etc., in that particular year should determine the status of the tenant in other years. I am, therefore, of the opinion that the rent payable in 1344 Fasli means rent ordinarily payable without taking into consideration any special remissions for that particular year.

Raghubar Dayal, J.

24. I have read the judgment of my brother Bind Basni Prasad and agree with him.

25. I may just mention one further consideration in support of the view taken. It was the Agra Tenancy Act, III of 1926, which was in force in 1344 Fasli which corresponded to 1936-37. The rent payable in 1344 Fasli should be the rent which would be deemed to be payable in that year in view of the provisions of the Agra Tenancy Act. Section 47 of that Act practically corresponds to Sections 93 and 98, U.P. Tenancy Act, and is:

The rent or rate of rent payable by a tenant shall be presumed to be the rent or rate of rent previously payable by him until a registered agreement, or a decree of a Court, is proved varying the same.

It follows that the rent payable in 1344 Fasli would be presumed to be the rent which was payable in 1343 Fasli. Ultimately rent payable would be either the amount agreed upon between the parties or the amount fixed for rent by a competent Court. Such amounts do not take remissions in consideration. The mere words 'rent payable in the year 1344 Fasli' must therefore mean the rent payable without deducting any remissions granted in that particular year. The grant of remissions is a mere relief for the particular year in which they are granted and does not affect the liability of the tenant to pay the agreed rent in the absence of any remissions.

26. Second Appeal No. 948 of 1943 is allowed, the decision of the Courts below is set aside and the plaintiff's suit is decreed with costs.

27. Civil Revn. No. 419 of 1945' is dismissed with costs.


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