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Mahomed Fayez Chowdhry Vs. Jamoo Gazee and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal730
AppellantMahomed Fayez Chowdhry
RespondentJamoo Gazee and anr.
Cases Referred and Jeeatoollah Paramanick v. Jugodindro Narain Roy
Excerpt:
rent suit - beng. act viii of 1869--stipulation to pay collection charges--illegal cess. - .....this suit was brought both for arrears of rent and also for arrears of the two annas in the rupee for collection charges; but the defendants contended that the latter claim could not be enforced, inasmuch as it represented the illegal cesses which were collected from ryots.4. both the lower courts have disallowed the claim upon the ground, and apparently upon the authority of the case of kamala kant ghose v. kalu mahomed mandal 3 b.l.r. a.c. 44.5. the plaintiff has appealed to this court, and contends, that as the two annas for collection charges was a definite sum agreed to be paid by the defendants over and above the rent, and as there was no evidence that the charges were illegal, there is no good reason why it should not be recoverable.6. the defendants, on the other hand,.....
Judgment:

Richard Garth, C.J.

1. The only question raised in this appeal is, whether the sum which the defendants undertook to pay to the plaintiff for collection charges at the rate of two annas in the rupee, was a claim which the plaintiff has a right to enforce.

2. The plaintiff granted to the defendants a patni talook at a fixed jama of Rs. 600, for which the defendants gave the plaintiff a kabuliat; and the defendants, by the same kabuliat, agreed to pay the plaintiff collection charges at the rate of two annas in the rupee along with the instalments of the annual rent.

3. This suit was brought both for arrears of rent and also for arrears of the two annas in the rupee for collection charges; but the defendants contended that the latter claim could not be enforced, inasmuch as it represented the illegal cesses which were collected from ryots.

4. Both the lower Courts have disallowed the claim upon the ground, and apparently upon the authority of the case of Kamala Kant Ghose v. Kalu Mahomed Mandal 3 B.L.R. A.C. 44.

5. The plaintiff has appealed to this Court, and contends, that as the two annas for collection charges was a definite sum agreed to be paid by the defendants over and above the rent, and as there was no evidence that the charges were illegal, there is no good reason why it should not be recoverable.

6. The defendants, on the other hand, contend that this sum of two annas in the rupee, which professes to be for collection charges, is in fact the average amount of illegal cesses which the plaintiff, before the grant of the patni, was in the habit of collecting from the ryots, but which, under the patni, became recoverable from them by the patnidar.

7. There having been some doubt during the argument as to the true meaning of the language of the patni patta in this respect we have had the instrument translated by one of the translators of the Court, and we find that the passage upon which the, question turns has been rendered thus: 'According to the practice prevailing in the pargana, we shall annually pay the collection charges at the rate of two annas per rupee along with the instalments of the annual rent.' We see no reason to doubt the accuracy of this translation; and inasmuch as it has not been shown that this part of the agreement is illegal or is founded upon the collection of any illegal cess or cesses, the claim appears to us unobjectionable.

8. We believe that agreements of this kind are by no means unusual, and if they are certain and definite in their nature, and form part of the consideration for the lease, there is no reason why they should not be enforced. See Juggodish Chunder Biswas v. Turrikoolah Sirkar 24 W.R. 90 and Jeeatoollah Paramanick v. Jugodindro Narain Roy 22 W.R. 12.

9. The appeal will, therefore, be decreed, and the plaintiff will be entitled to the arrears claimed for collection charges, in addition to the sum which has already been adjudged to him by the lower Court, with interest at 6 per cent, from the date of suit.

10. He will also have his costs accordingly in all the Courts.


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