1. In the suit which has given rise to this reference the plaintiff, the proprietor, prayed for enhancement of the rent of the defendants who are tenure-holders. The existing rent of the tenure was Rs. 32-14-0 as per year, and the prayer was to enhance it to rupees 2,000 a year. There was no prayer for recovery of rent for any period. The two rival contentions urged before me are as follows:
2. On behalf of the Government it has been contended that the case comes Under Section 7(2), Court-fees Act, 1870; while it has been urged on behalf of the plaintiff, now appellant, that the computation should be as Under Section 7(11)(b) of the Act. The report of the Stamp Reporter was in these words:
In such cases court-fees are payable Under Section 7, para. (1) as in the case of claims for money. The plaintiff having claimed rent at this rate can be said to be claiming that amount of money. If it be said that the rent is a periodical payment then it would come Under Section 7, para, (2).
3. The report of the Taxing Officer shows that before him the Stamp Reporter relied, and perhaps more strongly on Section 7(4)(c) urging that the suit was to obtain a declaratory, order viz ,
the liability of the tenure to enhancement with a consequential relief, viz., the finding that the amount of enhancement is due.
4. Before me it has not been, as indeed it cannot be, said on behalf of the Government that Section 7(1) applies, because the suit is not a suit for recovery of money, as it must be, to come within that provision. So far as para. (2), Section 7 is concerned, it is not easy to hold that a claim seeking to establish a right to maintenance or to annuity at a certain amount is similar to a claim seeking to have the existing rent enhanced to a certain figure, though rent, in itself, may be a sum periodically payable. I agree in the view taken by Das, J., of the Patna High Court in Kali Charan v. Kesho Pershad Singh, 1919 Pat 541, that the words 'other sums payable periodically' in Section 7(2) must be construed as implying sums payable in the nature of maintenance and annuities upon the rule of ejusdem generis, a view which has been maintained in later decisions of that Court. It is true that suits for arrears of rent are suits for money within Section 7(1) but that is not because arrears of rent come within the expression 'arrears of other sums' used in that paragraph but within the word 'money' used therein. The word 'money' used in that paragraph includes and therefore is of wider import than the several items mentioned within brackets in that paragraph. 'Maintenance' is a term which is well understood and needs no explanation importing ordinarily a conception of amounts payable for life to a person by virtue of his standing in a particular relationship with somebody else, and though the obligation to make the payment may often be defined in a contract, the original relationship which gives rise to the obligation is not necessarily contractual.
'Annuity' is a yearly payment of a certain sum of money granted to another in fee for life or years charging the person only: see Co. Litt, 144 (b).
5. Rent though payable periodically, is payable on account of a relationship of landlord and tenant which in its nature is essentially contractual and so represents a consideration which has got its counterpart. The contention of the Government in my opinion is not well founded. Section 7 (4)(c) also, in my opinion, cannot apply for there is no consequential relief really asked for in the case even if it is conceded that what is asked for is in the nature of a declaration. Although various forms of declaration may be asked for as ancillary to a prayer for a consequential relief a daclaration without any prayer for a consequential relief in order to be maintainable must be only a declaration that the plaintiff is entitled to a legal character or to any right to any property: Mt. Deokali Koer v. Kedarnath, (1912) 39 Cal 704. The prayer in the present case cannot be construed as for a declaration of that character and so Schedule 2, Article 17 also, in any opinion, will have no application.
6. The contention of the plaintiff appellant also, in my opinion, is equally untensable. Para, (11), Section 7 deals with certain suits between landlord and tenant. When the Court-fees Act of 1870 was enacted there was before the Legislature Act 8 (B.C) of 1869 which was only a reproduction of Act 10 of 1859 with its procedural portion amended. The latter Act was an Act to amend the law relating to the recovery of rent in the Presidency of Fort William in Bengal. There was no other Act of the legislature relating to the law as to landlord and tenant in other places. Even a cursory examination of the provisions of para. (11) of Section 7 will satisfy one that the draftsman of the paragraph had before him either Act 10 of 1859 or Act 8 (B.C) of 1869. In para, (11), Section 7 the word 'tenant' is used and that word must necessarily be taken as implying all kinds of tenants. But in the different clauses of the paragraph the word 'tenant' wherever used, has either been left unqualified or has been qualified by other words or expressions. In Clause (a) the word 'tenant' has been used without any qualification; in Clause (b) we find the expression 'tenant having a right of occupancy;' in Clause (e) appeared originally the expression 'occupancy of land from which a tenant has been illegally ejected by the landlord.' Clause (cc) was introduced by Act 6 of 1905, which also altered the word' land' to 'immovable property,' in Clause (e) and also in the last sentence of the paragraph. It is not necessary to set out here the history of law as to landlord and tenant prior to Act 10 of 1859; much of it so far as Bengal is concerned will be found in the judgment of Freder, J., 3 WR Act 10, p. 29 The Great Rent Case 3 WR Act 10 p. 29. But it is important to note that
the expression 'right of occupancy' was used for the first time by the legislature in 1859 and instead of the classification of raiyats into the khud kast and paikast, a new one was introduced less complex in character and with incidents more favourable to the cultivating classes. Possession and cultivation of land and payment of rent were all that were necessary to confer on that raiyat this right of occupancy (vide Mitra on Land Law of Bengal, Edn. 2, p. 337).
7. I have quoted the extract only to show the cardinal elements in the conception of a 'right of occupancy.' There is no reason why the word 'tenant' used in para. (9), Section 7 should be understood in a sense, that is to say, as tenant in respect of agricultural and not of non-agricultural tenancies. But when one comes to read the clauses of that paragraph as they stood in the Court-fees Act of 1870 one cannot fail to find that most of the clauses were drafted with a view to be applied to some particular class or classes and not others out of the five classes of tenants contemplated by Act 10 of 1859 or Act 8 (B. C.) of 1869 and also to some of the different classes of suits which were contemplated by those Acts. While this cannot be denied, the question to be considered is whether or not the legislature in enacting the Court-fees Act of 1870 and using therein the words 'occupancy' in Section 7, Clause (9), and 'right of occupancy' (in Section 7,Clause (9), (b) and Schedule 2, Article 5) intended to limit the meaning of those words to the sense in which the expression 'right of occupancy was used in those Acts or in the later Act of the legislature, e g., the Bengal Tenancy Act of 1885. To make the question further clear I think I may give an example taken from Act 8 (B.C.) of 1869 itself, which is to my mind pertinent. In that Act, on the question of enhancement, there are Sub-section 14 and 15 applying to the case of a raiyat holding without or on expiry of a written engagement, there is Section 16 applying to defendant talukdars or intermediate tenure holders, and there is also Section 18 applying to the case of raiyats having a right of occupancy. In a suit for enhancement under that Act, was Section 7,Clause (9)(b) intended to apply only if the suit was under the last mentioned section
8. Now, although the expression 'right of occupancy' was not used by the legislature anywhere in its statutes prior to Act 10 of 1859, the expression itself was not unknown. It has a meaning which was well understood and which was more comprehensive than what it received from the ligislature in that Act. In this connexion, I cannot do better than refer to the decision of the Judicial Committee, delivered by Sir Richard Colville in Bama Soondery Dassyah v. Radhika Choudhurani, (1869) 13 M.I.A 248 (PC). The suit in that case was commenced before Act 10 of 1859 had come into operation. Dealing with the right of a Bengal Zemindar to enhance the rent of rant paying lands within his zemindari their Lordships explained the nature of his right and said:
It (i.e., a suit to enhance the rent) assumes that the defendant has some valid tenure or light of occupancy in the land which forma the subject of the suit,
Regulation 8 of 1793 however does not apply a uniform rule to all tenures and rights of occupancy. It may be broadly said that it divides them into two great classes, viz., Taluks within the meaning of the 51st section, and ryoty and other under tenures for which provision is made by the 49th section.
in the present suit the respondent has come into Court treating the defendants to the suit as ryots having a right of occupancy in certain lands at a variable rent.
9. This judgment, in my opinion, plainly indicates that there was a popular meaning attached to the expression 'right of occupancy' wider than the meaning it came to have in Act 10 of 1859 and including such meanings as were subsequently given to it by other Acts of the legislature. At the same time, as the judgment also indicates, there was also a distinction between 'tenures' and 'right of occupancy,' the latter expression denoting such rights under which a tenant could be in actual physical possession, as it were, of the subject matter, while by the former word a superior interest was meant. I am of opinion that it was in this sense that the expression 'right of occupancy' was used by the legislature in the Court-fees Act of 1870.
10. In Clause (e) the word 'occupancy' has been used; but it has not been said 'from which a tenant having a right of occupancy has been illegally ejected' but only 'from which a tenant has been illegally ejected; ' and therefore the application of this clause in my opinion was not intended to be limited to ryots with occupancy right. In other words in my opinion the clause was not intended to be confined to cases arising under the proviso to Section 22, Act 8 (B.C) of 1869. I think, I should agree in the view taken by the Madras High Court that the words 'occupancy of land' and 'ejected' are properly applicable to the case of ryots or persons in actual physical possession rather than to others who hold superior interests: see Palaniappa Chetti v. Sithravelu Serval (1908) 31 Mad 14, at p. 16. The expression 'right of occupancy' has also been used in Schedule 2, Article 5, Court-fees Act, 1870 and as used there the expression must include the interest of an occupancy ryot, Bibi Nurjahan v. Morfun Mandal, (1882) 11 CLR 91, though I am not of opinion that it can be read as being synonymous with a 'right of occupancy' under any of the Acts relating to landlord and tenant. I am therefore of opinion that the plaintiffs-appellants contention cannot be acceded to.
11. The question then is, by what provision of the Court-fees Act, 1870 should the present suit be governed. I am disposed to take the view that the suit is based upon a plaint not otherwise provided for in this Act within the meaning of Schedule 1, Article 1 of the Act The value of the suit in my opinion is the value of the relief asked for, namely the enhancement which has been claimed. A claim for enhancement of rent is in one sense a claim for assessment of fair and equitable rent; indeed Section 7 Ben. Ten. Act, itself says that the rent may be enhanced up to such limit as the Court thinks fair and equitable. In the ease of a claim for assessment of rent, where the tenancy is a yearly one, it has been held that Schedule 1, Article 1, applies and that the value of the claim is the value of one year's rent: Dhanukdhari Tewari v. Mani Sonar, 1925 Pat 123. I see no reason why the claim for enhancement should not be dealt with on the same footing. I am of opinion that court-fees should have been paid on the plaint on Rs. 2,000, minus Rs. 32-14-0, and that the court-fees payable on the memorandum of appeal should be on Rs. 2,000 minus the amount up to which the rent was enhanced by the Court below.
12. My answers to the questions formulated by the Taxing Officer are the following: (1) a tenure-holder is a tenant within the meaning of Section 7(11) and the words 'right of occupancy' used in Clause (b) of that section are to be understood in the popular and more general sense of a right by virtue of which a tenant remains in actual and physical possession as it were of the tenancy and so does not include the right of a tenure-holder. (2) Yes. This would not make him any the less a tenure-holder: vide Section 7, Sub-section (4), Ben. Ten. Act, which speaks of a tenure-holder himself occupying a portion of the land. (3) Under Article 1, Schedule 1 of the Act as explained above.